Opinion

Attacking the judiciary: When is it appropriate?

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David Fontaine Mitchell
Commentator and Author
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      David Fontaine Mitchell

      David Fontaine Mitchell is a commentator and author. His book, “Ascension Island and the Second World War,” was published in 2011.

Some outlets are ramping up the rhetoric even more. Take Newsweek/Daily Beast columnist and University of Houston law professor David R. Dow, who recently called for the impeachment of Supreme Court justices who vote to overturn the individual mandate within the PPACA (very Newtesque, don’t you think?). Dow, in part, stated that “[i]t is the duty of the people to protect the Constitution from the court. Social progress cannot be held hostage by five unelected men.”

Funny how this all works. A few months ago, criticizing the judiciary was considered “dangerous,” “fringe,” “terrifying” and “outlandish” by the media; but today it’s somehow par for the course. A sitting president attacks the court during a pending case, and it’s considered both a noble and acceptable practice; yet a presidential candidate criticizes a ruling that has already been issued, and it’s somehow an “assault” on the independence of the judiciary? Give me a break. I’m pretty sure this has less to do with the case at hand and more to do with whether said “assailant” has a D or R behind his or her name. The ends are what matters to these outlets, not the process.

Conservatives and libertarians come under fire for criticizing the judiciary all the time. As Mark Levin recently reminded his audience, NPR accused him of advocating violence against judges after the publication of his 2005 book “Men in Black.” As someone who has read “Men in Black” a few times, I can attest to the fact that there is not a single reference to violence in the entire book; yet Levin made the mistake of publicly disagreeing with more than a few high court decisions deemed sacrosanct by those in the media, and therefore it was open season to attack his character and question his motives. Now that President Obama has taken a shot at the Supreme Court, is he inciting violence against the justices with whom he disagrees? Of course not, and NPR would never suggest that he was. Ever.

Frankly, I don’t really care whether Gingrich or Obama voice their displeasure with the judiciary and I’m happy to listen to legitimate constitutional arguments from both sides of the aisle. Presidents have taken shots at the court dating back to when Thomas Jefferson was in office. Was it a classless move to take a swipe at the justices before they even reach a decision? Yes. Did he “cross a dangerous line” and threaten the independence of the court, as Mitch McConnell has suggested? No. My beef isn’t with what President Obama said per se. What I have a problem with is the egregious double standard that’s on display in the media. Why is it considered historically unprecedented and outlandish to attack the court one week, then totally acceptable the next? Why are you considered a racist one day for daring to question the court, and later considered by the same crowd to be a racist for not raising questions and criticism? Most importantly, why is it so hard to find a major old media platform where one can just debate a particular law or ruling on the merits?

David Fontaine Mitchell is a commentator and author. His relatively short book, “Ascension Island and the Second World War,” was published in 2011 and can be downloaded for free here.