The Volokh Conspiracy

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Will Chief Justice Roberts Respond To Senator Wyden's Attack On Judge Kacsmaryk?


In March 2020, Senator Charles Schumer stood outside the Supreme Court and assailed the two newest members:

"I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the priceYou won't know what hit you if you go forward with these awful decisions."

That same day, Chief Justice Roberts released a forceful response to Schumer's remarks:

This morning, Senator Schumer spoke at a rally in front of the Supreme Court while a case was being argued inside. Senator Schumer referred to two Members of the Court by name and said he wanted to tell them that "You have released the whirlwind, and you will pay the price. You will not know what hit you if you go forward with these awful decisions." Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter.

And in 2018, after President Trump tweeted about "Obama judges," Chief Justice Roberts released another statement:

"We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them,"

Yesterday, Senator Ron Wyden unleashed a vituperative attack on Judge Kacsmaryk of the Northern District of Texas. Wyden echoed many of the barbs that have been repeated, over and over again, on Slate, Vox, and elsewhere.  Here are some of his remarks:

Legal logic be damned, the plaintiffs know that Judge Kacsmaryk won't let pesky obstacles like standing or precedent get in the way of the agenda they share.

That's because Donald Trump and conservative activists planted him on the bench in that Amarillo courtroom. They know he has spent his entire career fighting shoulder to shoulder with them against LGBTQ equality, abortion, and contraception.

He is there for the purpose of what I'll call "courtwashing."

In the courtwashing scheme, it's his role to give the appearance of judicial legitimacy to the outcomes that right-wing activists know they're getting as soon as their cases show up on his docket.

In the few years that Judge Kacsmaryk has been on the federal district court, he has earned the title of the most lawless judge in the country. It's tough to earn that kind of infamy in such a short time, but his rulings have justified it. . . .

The awful reality is, from the moment this case landed in front of Judge Kacsmaryk, it's been a rigged game all along. It's illegitimate. The case is an affront to the Constitution and to the rule of law in the United States of America.

So here's what must happen if and when Judge Kacsmaryk issues his nationwide injunction halting access to mifepristone.

President Biden and the FDA must ignore it.

Wyden's remarks make Schumer's seem tame. When will Chief Justice Roberts release a statement? Certainly Chief Justice Marshall can be cited here.