Attacking the judiciary: When is it appropriate?

David Fontaine Mitchell Commentator and Author
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It wasn’t long ago that Newt Gingrich was coming under heavy fire for his comments regarding the judiciary. Over the course of the Republican primary, the former speaker has taken multiple shots at controversial U.S. District Judge Fred Biery of Texas. In a ruling last year that made national headlines, Biery prohibited the Medina Valley Independent School District from sanctioning public prayer at a high school graduation ceremony. The students were ordered not to use religious words such as “prayer” or “amen” and were instructed to replace the terms “invocation” and “benediction” with “opening remarks” and “closing remarks” in the official graduation program. Biery ordered that individuals who did not obey his dictate were to be either incarcerated or face other sanctions for contempt of court.

Gingrich expressed his disagreement with this particular ruling several times on the campaign trail and was subsequently attacked by the news media and political pundits. The Los Angeles Times’ opinion staff asked whether Newt was “cynically pandering to the anti-judiciary crowd, chumming for votes among the grandchildren of the people who drove around with ‘Impeach Earl Warren’ bumper stickers on their Oldsmobiles.” The Washington Post managed to obtain quotes from handpicked “judicial experts” and a few Republicans to paint the speaker as fringe and out-of-step for his “assault” on judges. And The New York Times predictably pulled the race card, claiming that “[Gingrich’s] ideas would replace the rule of law with a reign of ideology. If he had his way, a Supreme Court that ordered an end to racist segregation policies would become a puppet of the political branches.” In addition to these stories, most major news outlets ran repetitive segments questioning Newt’s motives and speculating about how much damage his comments would do to the campaign.

It’s rather humorous how these individuals and outlets are suddenly singing a different tune now that the president has ramped up an attack on the Supreme Court. During an April 2nd press conference, Obama claimed that it would be “unprecedented” should the court overturn the individual mandate and stressed the “human element” that the justices should consider in what he referred to as a “political debate.” In what was then considered a pre-emptive strike by many, the president took a swipe at the court by referring to the justices as an “unelected group of people” and suggesting that they shouldn’t overturn a law passed by the elected branches of government (a rather interesting argument considering his Justice Department is currently attempting to get the courts to overturn the Defense of Marriage Act, which passed in 1996 with 342 votes in the House and 85 in the Senate, and was signed by President Bill Clinton). The New York Times followed the president with a much more direct attack on the justices: “There has been no court less restrained in signaling its willingness to replace law made by Congress with law made by justices.” The editors of The Times then pulled the race card again … but this time for those who would agree with the court should they reject the individual mandate! You see, back in the days of the Warren Court, an activist judiciary was, of course, warranted and necessary:

During an era of major social tumult, when the public’s attitudes about racial equality [emphasis mine], fairness in the workings of democracy and the dignity of the individual proved incompatible with old precedents, those centrists [Chief Justice Earl Warren and Justice William Brennan, Jr.] led the court to take new positions in carrying out democratic principles.

But today, according to The Times, judicial activism is somehow defined by the originalists who sit on the court and is therefore entirely uncalled for. The “four moderates” (Kagan, Ginsburg, Sotomayor, and Breyer) are merely stewards of the law:

The four moderates on the court have a leftish bent, but they see their role as stewards of the law, balancing the responsibility to enforce the Constitution through judicial review against the duty to show deference to the will of the political branches. In that respect, they and the conservatives seem to be following entirely different rules.

So let me get this straight: According to The Times a few months ago, if you criticize a court ruling you’re a racist puppet of the political branches that would have rejected the Supreme Court order to end segregation policies. Yet should you agree with the court if they strike down the individual mandate, you’re a racist who supports an activist judiciary and fails to “show deference to the will of the political branches.” Admittedly, I’m a bit confused.

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.