‘This is a moment, in our view, for the Supreme Court to clobber the senator with Title 18 of the United States Code, section 401. Title 18 is the part of our federal law that deals with criminal matters, and section 401 grants courts the power to punish contempt. The Nine could move against the senator sua sponte, meaning on the court’s own motion, by issuing a heavy fine, say, or seizing his law license, or worse.
Could the court really do that? We’re no lawyer, just a newspaper with a flask of newsblack and whiskey in one hand and a pen in the other. Yet the plain language of Section 401 says that “a court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as . . .” Then it lists the contempts that would open an individual to sanctions.’
Could the court really do that? We’re no lawyer, just a newspaper with a flask of newsblack and whiskey in one hand and a pen in the other. Yet the plain language of Section 401 says that “a court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as . . .” Then it lists the contempts that would open an individual to sanctions.’
Judges: The Whirlwind, Indeed
Editorial Board, NYSun.com - March 6, 2020
What should be done about Senator Schumer’s threats to two members of the United States Supreme Court? Everyone agrees that the senator’s words were shocking. Mr. Schumer, while addressing an abortion rights rally in front of the Court, issued threats against two justices over a case on abortion. “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price,” Mr. Schumer boomed.
The Baltimore Sun, in an editorial today, reckons that Mr. Schumer was merely echoing Justice Kavanaugh’s expression, during his confirmation hearing, of fear of the whirlwind the Democrats had sowed. Mr. Schumer, though, having so pointedly named Justices Gorsuch and Kavanaugh, proceeded to shout a threat that shocked the nation: “You will not know what hit you if you go forward with these awful decisions.”
This is a moment, in our view, for the Supreme Court to clobber the senator with Title 18 of the United States Code, section 401. Title 18 is the part of our federal law that deals with criminal matters, and section 401 grants courts the power to punish contempt. The Nine could move against the senator sua sponte, meaning on the court’s own motion, by issuing a heavy fine, say, or seizing his law license, or worse.
Could the court really do that? We’re no lawyer, just a newspaper with a flask of newsblack and whiskey in one hand and a pen in the other. Yet the plain language of Section 401 says that “a court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as . . .” Then it lists the contempts that would open an individual to sanctions.
One is “misbehavior of any person” in the court’s “presence or so near thereto as to obstruct the administration of justice”; two is “misbehavior” of “any” of the court’s “officers” in “their official transactions”; and three is “disobedience or resistance” to the court’s “lawful writ, process, order, rule, decree, or command.” So it looks like Mr. Schumer is in jeopardy of contempt in all three categories, including, because he’s a lawyer, the second one involving court officers.
The business about sua sponte is not novel. Courts act on their own motion all the time (sometimes a judge just barks at an unruly defendant to sit down and behave himself or, if he doesn’t, fines him or throws him in the clink for a night). The case of Senator Schumer is particularly egregious, given that he threatened two members of the Supreme Court in a contemptuous tone by their last names only and absent honorifics.
The senator was threatening them not to go forward, even as the Justices were sitting inside on an active case — June Medical Services v. Russo — involving abortion regulations at Louisiana. In the view of even the Washington Post, Mr. Schumer’s words were “arguably worse” than the kind of criticism that President Trump used against, say, Justices Sotomayor and Ginsburg. The Chief Justice of the United States, John Roberts, called Mr. Schumer’s remarks “dangerous.”
Which is why it seems to us that this would be an occasion for the Supreme Court to unsheath Section 401. It could start with an order to the Chief United States Marshal to frog march the Senator into the courtroom. The justices could remind him that he is not under the protection of the speech and debate clause, because his threat was issued not inside the Senate but rather from the Court’s own apron.
Then the justices could give the minority leader of the Senate a minute of silence to compose an apology and order him to utter it on the spot to Justices Gorsuch and Kavanaugh. They could use their judgment to gauge whether Mr. Schumer sounds genuinely contrite and seems to understand the line he crossed. Otherwise, a fine, disbarment, and a few nights in the pokey. Whirlwind to follow.
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