Senate Democratic Leader Chuck Schumer recently stood outside the Supreme Court building and said: "I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind and you will pay the price. You won’t know what hit you, if you go forward with these awful decisions."

This was more than sharp criticism of public officials, which is commonplace and fair commentary. Exclaiming "you won’t know what hit you" is either a veiled threat or an incitement to the angry crowd listening to him.

Had Schumer said it on the Senate floor, the Constitution would shelter him from legal accountability. But he did not. And it’s a crime to "utter loud, threatening, or abusive language" on the grounds of the Supreme Court building. Violators face 60 days in jail.

Chief Justice John Roberts appropriately called it a dangerous, and inappropriate threat. Many called for Schumer to be prosecuted.

While his remark was despicable and out of step with mainstream American discourse, it’s likely First Amendment protected. Which means accountability must come from his fellow senators, who can censure or expel him and his New York constituents, who can vote him from office.

Schumer was frustrated that his preferred position on abortion might be inconsistent with the Constitution, and the Supreme Court – along with its two newest members Neil Gorsuch and Brett Kavanaugh – may issue a decision not to Schumer’s liking. In short, he’s mad he may not get his way.

Get used to it, Chuck. Most Americans disagree with a few Supreme Court decisions here or there. And we find ways to express discontent without making implied threats of violence or retribution.

There’s no doubt judges ought to be criticized, in civil terms, when they abuse their power. In fact, I regularly speak out when judges act unencumbered by the rule of law.

But intimidation aimed at changing an upcoming ruling is a different matter. That’s because judges, bound by rules of ethics regarding public statements, are ill-equipped to defend themselves. This was predicted by, and a great concern of, the founding fathers.

Well before Alexander Hamilton was writing rap musicals for Broadway, he helped draft the Federalist Papers, an important guide to the framers’ thinking. If the founding of America were a sporting event, the Constitution would be the play-by-play and the Federalist Papers would be the color commentary.

Hamilton, in Federalist 78, identified the judiciary as the weakest of the three branches of government and pointed out "that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks."

This year, the attempts at coercion came from a leader of the legislative branch. But, 83 years ago, a similar brush-back pitch came from executive branch.

In a March 9, 1937 fireside chat, President Franklin Roosevelt sought to convince Americans that his scheme to pack the Supreme Court with justices favorable to his policies was something other than an unvarnished grab for power. As a savvy political operator, Roosevelt knew that, even if his attempt failed, his broadcast could intimidate sitting justices.

Booming across millions of radios, Roosevelt targeted the justices who’d been ruling against him. "Our difficulty with the Court today rises not from the Court as an institution but from human beings within it. But we cannot yield our constitutional destiny to the personal judgment of a few men who, being fearful of the future, would deny us the necessary means of dealing with the present."

His message: these jurists are obstructing progress and we must stop them quickly. He didn’t have to wait long.

Three weeks after his broadside, Roosevelt’s bullying paid off: Justice Owen Roberts – previously an opponent of New Deal policies and the progressive agenda, switched his vote to support a narrow 5-4 decision, upholding a controversial minimum wage law. While Roosevelt never acquired additional seats on the high courts, he did force the justices to think twice before ruling the way the law and the Constitution moved them.

President Barack Obama may have attained a similar effect in 2012, as he desperately sought to keep the Obamacare law from being found unconstitutional. As the justices were writing their opinions in the case, he publicly warned them that they were "an unelected group of people" who would be acting improperly if they were to "somehow overturn a duly constituted and passed law."

Obama once taught constitutional law, so he knew that, since 1803, federal courts have been overturning laws. It’s in the job description. But he hoped Americans wouldn’t fully grasp that and, if his gambit worked, citizen discontent would undermine the court. Chief Justice Roberts must have noticed because he, as the other Justice Roberts did in 1937, switched his vote to save the controversial law.

We expect politicians to do zealous rhetorical battle with ideological adversaries. It’s a strength of our democratic republic. But we cannot abide threatening vitriol aimed at the branch who wear robes of cloth, not Kevlar.

Ohio lawyer Mark R. Weaver is the former Deputy Attorney General of Ohio who previously served as a spokesman for the U.S. Department of Justice in Washington. He is the author of the book "A Wordsmith’s Work." Twitter: @MarkRWeaver.

Roger Stone arrogantly made a prison cell bed for himself, and now he must lie in it. Yet even people unworthy of sympathy deserve the ability to speak publicly, a right that Judge Amy Berman Jackson continues to deny to Stone. Her actions indicate she’s putting politics above the law—a troubling ethical breach.

The judicial arrogance dripping from Judge Jackson’s courtroom calls for redress.

I’m not a hasty critic of judges. As an attorney, I’ve represented many of them, most recently arguing in a state Supreme Court on behalf of a judge who properly limited the news media comments of trial participants during a high-profile murder case. I’ve also served as a magistrate and acting judge. In hundreds of cases, I’ve felt the lonely burden of making difficult decisions that affect the lives of others.

Despite my fondness and familiarity with the judiciary, I regularly speak out when judges are unencumbered by accountability and the rule of law. The judicial arrogance dripping from Judge Jackson’s courtroom calls for redress. Such reckoning typically comes from appeals courts and public forums (like Human Events).

But, for judges who resist accountability, the possibility of congressional impeachment also lurks.

During his trial, Judge Jackson barred Stone from speaking publicly about his case, which is permitted in extreme circumstances, most commonly when such commentary has a high likelihood of biasing a jury. Continuing Stone’s gag order, however, even after the jury was dismissed, has no rational basis in law and violates the First Amendment.

While she can exercise her own right to free speech and generally say what she wishes, judges are bound by legal dictates and ethical obligations.

This isn’t the only occasion in which Judge Jackson acted out-of-bounds. More recently, she inappropriately criticized the Department of Justice for how it makes internal management decisions, a topic well beyond the purview of a judge. She also offered a personal opinion on the extent of Russia’s involvement in the 2016 election, which was an issue not before her court. Even more erratic was her hostile commentary against Fox News host Tucker Carlson, who has reported on her actions.

Jackson’s political sponsor, D.C. congressional delegate Eleanor Norton Holmes, told USA Today that the judge “can do anything she wants to do.”

Not quite.

While she can exercise her own right to free speech and generally say what she wishes, judges are bound by legal dictates and ethical obligations. Judge Jackson has absolutely no jurisdiction, for instance, over Carlson. Zero.

If she takes the next step and attempts to enter a court order of any sort against Carlson—or any reporter not standing in her courtroom—she will not only be subject to a stinging appellate reversal, she will present Congress with a strong case for impeachment for failure to abide by the “good behavior” clause of Article III, Section 1 of the Constitution. That’s because, by law and tradition, judges only have power to issue orders against people and entities involved in the case, such as parties and witnesses. On issues of contempt of court, a judge also has authority to issue rulings affecting people who are physically in the courtroom. Attempting to issue an order beyond those parameters would be a shocking abuse of judicial branch power that would call for a corresponding legislative branch check.

Even before Alexander Hamilton sat down to write rap musicals for the Broadway stage, he helped draft the Federalist Papers, an important legal resource. If America’s founding were a baseball game, the Constitution would be the play by play, and the Federalist Papers would be the color commentary.

Checks and balances require public involvement. When judges like Amy Berman Jackson step beyond their power, we must both call it out and call it what it is—black-robed tyranny.

Hamilton, in Federalist 78, called the requirement of judicial good behavior “certainly one of the most valuable of the modern improvements in the practice of government.” Hamilton knew that a check was needed on the power of unelected judges.

This genuinely matters. All too often, people of dangerously low character or dangerously high self-esteem have sullied the judicial robe. In fact, the Senate has heard 15 impeachment cases where judges were accused of violating the duty of good behavior. Among them were one associate justice of the Supreme Court, one commerce court judge, and 13 district judges—like Judge Jackson.

While litigants and attorneys owe respect and some level of deference to judges during court sessions, outside of court, too many judges demand the grovel, the bow, and the curtsey. Ask any lawyer: after taking the job, even outside court, some judges expect that their jokes will be funnier, their musings more brilliant, and even their wardrobe more stylish by virtue of the title they hold.

Sometimes, such shallow pursuit of flattery amounts to nothing but an annoying trifle. Yet, far too often, the power seeded in judges blooms into abuse. Some judicial officers use that legal clout to quell criticism of their work, à la Judge Jackson. Others become so accustomed to making decisions without criticism that they lose sight of the boundaries of proper trial management.

And, most commonly, some judges fancy themselves unelected legislators, advancing their personal policy preferences rather than deferring to a legislature empowered directly by voters. In the minds of those judges, their own wishes somehow permit them to push past the Constitution.

Checks and balances require public involvement. When judges like Amy Berman Jackson step beyond their power, we must both call it out and call it what it is—black-robed tyranny.

The power that government actors wield comes from, to borrow a phrase from the Preamble to the Constitution, We the People. On occasion, the people must be willing to rely on a few arrows from our own constitutional quiver to tame an errant public official. Primary among these are a right to speak out, assemble together peacefully, and ask to have our grievances with government properly addressed.

Those Americans who, like me, bristle at judicial arrogance from the few jurists who wield a gavel like a weapon of abuse, ought to stand up, speak out, and demand accountability. And, while Roger Stones will come and go, the rule of law and government by consent of the governed must endure.

In recent years, state laws colliding with local ordinances on guns, fracking, traffic cameras, residency and construction projects have come for resolution to the Ohio Supreme Court.

In 2009, assistant attorney general Benjamin Mizer argued before the court about a 2006 state law overturning more than a hundred local residency laws for public employees.

“This court has always looked at the statewide concerns side of the ledger, and if there are significant statewide concerns, then the General Assembly can act,” Mizer said.

But cities have pushed back. In 2015, now-state Rep. Paula Hicks-Hudson, who was then the Democratic mayor of Toledo, led the fight against state laws to control the use of local red light and speed cameras.

“It’s about this assault on the separation of government and our need for the cities to be able to exercise their due process rights,” said Hicks-Hudson.

In nearly all recent cases where home rule is at issue, the Ohio Supreme Court has sided with state lawmakers.

“Some critics of that have said that the Home Rule doctrine has been watered down over the years by the Supreme Court,” said Mark Weaver, a Republican strategist and the former deputy attorney general, and has taught law at Ohio State and the University of Akron. “I would suggest to you it's much more a case of local governments pushing the boundaries of what a general law is and being reined back in by the state Supreme Court.”

But Kent Scarrett with the Ohio Municipal League, which represents 740 communities across Ohio, said it’s more than that, especially when the state is restricting local lawmaking – like on traffic cameras – while cutting local government funding.  

“It always gets to our budgets. It always impacts the taxpayers locally, because when you're taking away revenue from a community, you're taking away the ability of communities to fund services. It really is self-defeating at the end when the legislature jeopardizes our funding sources,” Scarrett said.

The conflict between lawmakers who want to ensure uniformity across the state on gun laws and business practices runs straight up against local officials who say they have the right to make rules that improve life in their communities.

For instance, last month the Ohio Supreme Court overturned Cleveland’s law requiring 20 percent of work in public construction projects be performed by local residents. The city said the law produced equity in those projects and helped thousands of people in Cleveland. But the state won with its argument that all Ohioans should be protected from discrimination based on their home addresses.

Weaver notes there’s been a political and geographic divide among rural and suburban Republicans who are in the majority in the legislature, while urban Democrats are in the minority.

“Political players always like to advance their political interests,” said Weaver.  “We see state legislators right now, Republican majorities, advancing more gun rights legislation. And we see city council leaders and mayors, largely Democrat, pushing the other direction. And so this becomes a great civics question of who has more power.”

Scarrett agreed there are political forces at work, but suggested there’s a national effort by conservative groups pushing model legislation – most recently on attempts by cities to control where infrastructure for 5G technology would be built.

“It was an organized effort. It was pretty much the same language in each state. They've had a very successful track record in the legislatures of getting these pre-emptions through,” Scarrett said. “It's something we continue to try and identify what the challenges are when you take away local control.”

And there are more battles that may be coming.

A handful of city leaders and community activists have said they want to increase the minimum wage, though a state law banning that was signed by former Gov. John Kasich in 2016. (That “Petland” bill also included regulations on pet stores, a ban on bestiality, and permission for wireless companies to use public buildings and other rights-of-way for cellular transmission equipment.) And  communities are moving ahead with bans on plastic bags as state lawmakers consider a bill to ban those bans, saying grocers and others who do business statewide are concerned.

But sometimes local communities have led the way on legislation the state got behind. Some cities passed laws on texting while driving before the state banned it in 2012. And while a statewide “21 and over to buy tobacco” law took effect last week, several cities already had a local law in place.

Sixty-five years ago this month, there was a whiplash-level turning point in history. An exasperated attorney for the Army was tired of hard-charging Communist-exposer Senator Joseph McCarthy outing the names of alleged communists during a televised hearing. That lawyer asked the question many others were thinking: "Have you no sense of decency, sir?"

Communism was and is serious business. It was the executioner’s theme for millions murdered in the Soviet Union, China, Cambodia and elsewhere. McCarthy used that specter to punish his enemies and amass political power.

Many historians identify that moment as the first stumble in McCarthyism’s downfall. But McCarthy’s true blunder was shaming with too broad a stroke, as some accusations were well-founded. When the Iron Curtain tumbled down, official documentation emerged that verified what many suspected all along: there were Soviet spies in our government. So, if McCarthy was substantively correct, why did so many turn their backs to him? 

By overstating the problem and overplaying his hand, he overlooked the need to be responsible with such an important topic. His credibility collapsed like a bad alibi.

History has arranged a similar pivot point to coincide with the anniversary of that incident. Earlier this month, jurors in Northeast Ohio called out a different kind of attempt to exploit a serious issue — racism. And it was Oberlin College called to account.

A $44 million mistake

The Gibson family bakery and store has served the Oberlin town and gown for more than a century. If students shoplift there, the store presses charge — without regard to skin color. Townspeople revere the family, now staffed by three generations of Gibsons.

In 2016, when three underage black students tried to steal alcohol from the store, an owner confronted them, which led to the students assaulting him. The students at Oberlin initially cried racism. Later, when they admitted guilt in court, they acknowledged the bakery's staff had not acted in a racially motivated manner.

This happened right after President Trump’s election, when the campus was in full political pout. Despite no evidence of racism by the store, the already-agitated campus erupted in protests. The Gibsons were targeted with death threats and loss of business. Surprisingly, the college egged on the demonstrations, even after they knew racism wasn’t involved. College staff distributes flyers falsely alleging racial profiling by the Gibsons and ended a program where the bakery provided food for student dining. Emails showed some college administrators acting as irresponsibly as many students.

Unlike many tainted by false accusations, the Gibson family didn’t let these slanderous slurs slide. At a time when accountability seems like a quaint notion of the past, they sued and the jury ordered the college to pay $44 million in damages. It’s as if the jurors turned to college officials and their student cohorts and asked them, "have you no decency?"

The lesson? Making false allegations of racism is egregious and morally bankrupt.

Racism is a problem, but not in every heart

When I was a spokesman for the U.S. Department of Justice, I worked on heinous cases where innocent people were abused because of their skin color. Racism is a sin against God’s own notion that we’re all equal and created in his image. It’s a genuine problem. Only the ignorant or ignoble deny this.

Yet racism does not reside in every heart, it cannot be found around every corner, and it has unquestionably lessened dramatically as America found its footing of fairness following the Civil War of the 1860s and the Civil Rights reforms of the 1960s. Only the ignorant or ignoble will deny that.

Sadly, Oberlin College’s actions aren’t unique. Their accomplices across America, and in grimy corners of the internet, regularly brandish false allegations of racism. Worse yet, they do it to punish enemies and amass political power. This despicably dishonors heroes like Frederick Douglass, Rosa Parks, and Martin Luther King.

Just as Americans rebuffed the demagoguery of McCarthy when he exploited and inflated the indisputable problem of Communist infiltration to expand his power, we should reject those demagogues who exploit and inflate racism for political gain.

These jurors, imbued with common sense and common decency, may have activated the turn signal in what could be a national lane change in a country where — sadly — insults masquerade as logic and victimhood impersonates character. Like the man who called out McCarthy, they deserve our gratitude.

Mark R. Weaver is the author of the book “A Wordsmith’s Work" and he previously served as the deputy attorney general of Ohio. This column originally appeared in the Cincinnati Enquirer. Twitter: @MarkRWeaver.

On Sunday mornings, in churches across America, many of us count on ministers of the gospel to use their influential positions to strengthen people’s faith. We know all too well that recent religious scandals have weakened confidence in this foundational institution.

On the other days of the week, in the courthouses of our country, we have similar expectations of a different kind of minister – prosecutors. In Ohio and other states, prosecuting attorneys are governed by ethics rules that identify them as "ministers of justice." While their pursuit is secular, we still rely on them to do the right thing. When they don’t, our faith in the legal system is shaken.

Sadly, the actions of Chicago prosecutors in the Jussie Smollett have cast deep doubt and raised vexing questions about access to justice. We’re all now left to wonder whether political influence and undue deference to celebrity can tilt the scales of justice in a fashion otherwise unavailable to an accountant in Avondale or a waitress in Walnut Hills.

As an Ohio prosecutor, I’ve made tough decisions about which suspects should face charges and which ones deserve a pass. Criticism of these assessments is easy to launch. Having been on the receiving end of such scrutiny, I hesitate to indulge. But the Smollett dismissal is such an outlier and perversion of prosecutorial discretion, it must be addressed.

In Ohio, hundreds of criminal charges are dismissed every day. Utilizing a process called "diversion," prosecutors make a determination that a defendant in a low-level criminal matter has learned his or her lesson and is unworthy of a full-blown trial and undeserving of a conviction. But there’s a key precursor to these dismissals.

A 2017 survey of diversion programs in Illinois by the Center for Health and Justice found that diversion programs that take place after a person has been charged with a crime "generally require a guilty plea and associated documentation to participate." And for those diversions that don’t require a guilty plea, the prosecutor expects a defendant to show contrition of some sort.

The unabashed public denial issued by Jussie Smollett following his dismissal was far from contrition. The actor regurgitated his initial false claims, thereby exposing the lack of merit in the local prosecutor’s decision. I don’t know much about the character Smollett plays on TV, but his portrayal of a victim deserves a trip back to acting school.

As we look even closer, we see more rot in the floorboards of this dismissal. According to a 2016 New York Times investigation, diversion typically is offered only in minor cases like shoplifting, drug possession, and petty theft. That conclusion is consistent with my years of work in the court system. Voluntary dismissals of multiple felonies – particularly involving serious matters like hate crimes, falsification, and abusing legal process – are rare. 

The mishandling of this matter involves much more than whether a hate crime huckster avoids responsibility for his heinous hoax. It’s become Exhibit Z – perhaps the last bit of testimony – in the case that Americans have against public officials who fail to abide by their oath of office.

The final verdict is easy to predict: ministers of justice who forgive the legal sins of the powerful while recommending the wrath of punishment for the powerless simply have no place in a temple of trust.

Columbus attorney Mark R. Weaver is the former deputy attorney general of Ohio and has worked as a prosecutor for two decades, including prosecuting public officials, child molesters and murderers. He is the author of the book “A Wordsmith’s Work.” Twitter: @MarkRWeaver.