Appeals Court Orders Obama To Clarify Remarks on Judicial Review

The 5th Circuit has demanded a report from the president on his views about the power of the courts.

In response to President Obama’s absurd grandstanding about judicial activism, the 5th Circuit is ordering that he clarify his views about the power of the courts.

CBS News Crossroads (“Appeals court fires back at Obama’s comments on health care case“)

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president’s comments yesterday about the Supreme Court’s review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was “confident” the Court would not “take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

Overturning a law of course would not be unprecedented — since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise — despite the president’s remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Both my instant and my considered reaction to this: Who the hell do these people think they are?

Look, there’s simply no question that Obama’s talk about “an unprecedented extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress” is absurd on a number of fronts. Doug ably lays out that case. On the other hand, it’s simply election year blather. Certainly, as Steven Taylor rightly notes, presidents lambasting judicial activism is neither unprecedented nor extraordinary.

Still, it’s just talk; the president has given zero indication that he plans to ignore the Supreme Court’s ruling if it goes against him. So, what in the world is a court–much less a mere intermediate appeals court–doing demanding that the president answer its questions? Indeed, given that the power of federal courts to strike down laws they deem unconstitutional has been settled law for over two centuries, what difference does it matter what Obama or “the executive branch” believes?

This action by the 5th Circuit, then, is simple political grandstanding to make a point. But it’s much worse than Obama’s grandstanding. First, because it’s actually using the power of the institution to put it into action, rather than simply making it in a speech. Second, and more importantly, because the courts are supposed to be above the political fray.

FILED UNDER: Campaign 2012, Law and the Courts, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Mib says:

    I love that the appeals court is firing back. Apparently, the “constitutional law professor” never learned Marbury v. Madison in middle school; that must have been during the years he did cocaine.

    Then, he tries to weasel out of his gaffe with complete lies.

    1) “The point I was making is that the Supreme Court is the final say on our Constitution and our laws…” (LIE!)
    With all due respect to the president, that’s exactly the opposite of what he was trying to say. Mr. “Constitutional Law Professor” was trying to condescend (to the Martin-th power) the Supreme Court. Fellow judges don’t seem to appreciate that too much on both a constitutional level (separation of powers) and a personal level.

    2) “…it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature…” (LIE!)
    Restraint, yes. Deference, no. A Supreme Court that showed deference wouldn’t do too much for the system of checks and balances, now would it? Judical review is the check the courts have on the executive and legislative branches. Mr. “Constitutional Law Professor” can’t really not know that. Maybe “professors” like this are why our “elite” law schools are churning out Sandra Flukes and not Antonin Scalias.

    3) “…the burden is on those who would overturn a law like this” (LIE!)
    I’d say the burden would be back on those who passed an unconstitutional law (should that be the result). It’s your signature “accomplishment” that may be headed for the scrap heap, Mr. “Constitutional Law Professor.” The Supreme Court moves on to the next set of cases while you’re stuck trying to salvage a re-election campaign on a terrible record.

    (Aside: Personally, I think the president should be pleased that the more conservative justices of the Supreme Court are actually restrained. If I were on the court, I’d be tempted to rule against him just to see what happens to that smug facial expression of his when he gets rejected. It’s safe to say I don’t have the temperment to be a judge.)

    It looks like on account of all that, an appeals court seems to want the DOJ lawyers to submit a briefing on why Marbury v. Madison is bull**** since that was basically Obama’s argument. In the words of Terrell Owens, “getcha popcorn ready.”

  2. PJ says:

    The United States Court of Appeals for the Fifth Circuit finds President Obama guilty of being uppity.

  3. Ben Wolf says:

    @James Joyner

    I’ve mostly been dismissive regarding the oft-lamented polarization of out politics, seeing it as a relatively short-term aberration resulting from media dedicated to making people hate each other. I also don’t much care for the President’s blatant challenging of the Supreme Court’s long-accepted powers. Things like what you’ve just addressed, however, make me a little nervous. I don’t think we can ignore that the 5th Circuit is located in the deep south and is therefore more conservative than others. If polarization is becoming embedded within the structure of the system with even various courts in contention depending on geography, then one has to wonder whether the country isn’t in for greater turbulence in the future.

  4. Still, it’s just talk; the president has given zero indication that he plans to ignore the Supreme Court’s ruling if it goes against him.

    Indeed. This was part of my point yesterday.

    I think all of this stuff (whether it be the commentary and political rhetoric that I was referring to yesterday) or this demand from the Fifth Circuit is all a bunch of overreaction to basic politics wherein people say a lot of things. What they say isn’t the ultimate issue, what they do is–and there is no doubt that whatever the SC rules that the ruling will be followed.

  5. And: agreed:

    This action by the 5th Circuit, then, is simple political grandstanding to make a point. But it’s much worse than Obama’s grandstanding. First, because it’s actually using the power of the institution to put it into action, rather than simply making it in a speech. Second, and more importantly, because the courts are supposed to be above the political fray.

  6. Orin Kerr has some interesting remarks on this over at the Volokh Conspiracy. He concludes with: “It just makes the judges look like political actors themselves, which doesn’t help anyone.”

    Indeed.

  7. Brummagem Joe says:

    First, because it’s actually using the power of the institution to put it into action, rather than simply making it in a speech. Second, and more importantly, because the courts are supposed to be above the political fray.

    Judicial activism you could say. Isn’t the 5th the only one of the several appeals courts who heard the ACA case to find part of it unconstitutional?

  8. Nikki says:

    Back in 2005 and 2006, during the height of the right’s “judicial activism” cries, more than one third of the nation’s federal judges asked the U.S. Marshals to hire security services for them after Judge Joan Lefkow’s husband and mother were murdered. Testifying before Congress on May 18, 2005, Judge Lefkow stated she placed some of the blame for the murders on the rhetoric coming from the right.

    Not once did any of those approximately 2,200 federal judges, including those on the 5th Circuit Court of Appeals, react in this blatantly partisan manner. These people, including members of SCOTUS, were actively receiving death threats, a justice’s family had been murdered, but that didn’t inspire any of them to so arrogantly jump into the political arena and challenge the administration from the bench. Yet, we still seem to want to pretend that racism is not in play.

  9. superdestroyer says:

    I guess progressives like judges who agree with them and dislike judges who disagree with them. What has changed.

    If the U.S. had a real media, someone would go back find out what Professor Obama said while he was teaching constitutional law. The same media would also go back and see what is taught at Harvard Law School.

  10. Ben Wolf says:

    @superdestroyer: Shouldn’t you be working on tying the 5th Circuit’s order to the prevalence of black people?

  11. Hey Norm says:

    What standing do they have to make such an order?
    They asked the question of the DOJ Attorney, and it was answered.
    Republicans are such f’ing babies. The big tough Koch Brother Justices need the 5th Circuit to protect them? Pu$$ies. No, never mind…that insults pu$$ies.

  12. Anderson says:

    I’ve argued before two of these three judges, and met the other (Southwick) a few times. Southwick in particular I had thought was too much of a jurist and a gentleman to participate in such a stunt. Perhaps I was mistaken.

    It’s unclear to me whether the rest of the panel concurred in the homework assignment (AT LEAST three single-spaced pages? nutty!) or just sat there embarrassed while Smith, the presiding judge, went off his rocker.

    I would imagine the chief judge of the Fifth Circuit is having some lively discussions in her chambers today. At least, I hope so, instead of all the GOP judges on the circuit walking around high-fiving each other.

  13. superdestroyer says:

    I wonder if anyone in the media will have the guys to go back to the lectures of professor Obama to see what he said about the commerce clause. Did Professor Obama really lecture that there should be no limits to the commerce clause? Did Professor Obama really lecture that because people may live in two states that they are participating in interstate commerce just by existing?

  14. Brummagem Joe says:

    As far as I can tell this hasn’t received any media attention so far (at least it wasn’t in my morning papers) but in strictly political terms I’m sure Obama wouldn’t be unhappy if it blows up into a big news story since it’s essentially reinforcing the judicial activism meme right at the moment when we might be about to see a major extension of this activity by SCOTUS.

  15. Hey Norm says:

    “…But it’s much worse than Obama’s grandstanding. First, because it’s actually using the power of the institution to put it into action, rather than simply making it in a speech…”

    The President didn’t even make the comment in a speech…he made it in response to a question at a press conference.
    In response to another question at the AP event Tuesday he further clarified:

    “…We have not seen the court overturn a law that was passed by Congress on an economic issue like health care — that I think most people would clearly consider commerce — at least since Lochner….The burden is on those who would overturn a law like this…”

    Indeed…Morrison did not overturn the Law, and Lopez was not an economic issue.
    Overturning the PPACA would only add to the image of the Supreme Court, after Bush v. Gore and Citizens United, as a Super-Legislature.
    It’s time to start electing these people. They are way too political, hold to much way too much power, and are way too unaccountable for what they do with it.

  16. Tsar Nicholas II says:

    Separate but related topic:

    The 5th Circuit without doubt is the best federal court in the entire country. Carter’s folks have faded away, Clinton didn’t receive too many open slots, and the Reagan-Bush-Bush triumvirate didn’t make any Souter-style mistakes.

    Speaking of Souter, there’s somewhat of a connection there to the 5th Circuit which boggles the mind. Edith Jones — now the Chief Judge of the 5th Circuit and basically a female version of Scalia, Thomas and Alito — was going to be named to the SCOTUS, until Sununu Sr. committed the gaffe of all time by convincing Bush 41 to go with Souter. Can you fathom how much different (better off, of course) the country would be if Jones and not Souter had sat on the Court all those years? Quite literally it would have changed the course of history.

    Concerning this kerfuffle between the 5th and the administration, that media report appears to be a tad hysterical and overblown. Courts often ask in various contexts for supplemental briefing. The administration’s legal teams are more than a touch scatterbrained. Much ado about not so much.

  17. Chad S says:

    When did Obama say that SCOTUS didn’t have the right or the power to overturn Obamacare? He said this:

    And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this.”

    So, he’s not condemning judicial review.

  18. I think Obama’s answer was goofy, but I’m really surprised that commenters above can work themselves into being “shocked, shocked” at finding politics in the courts, yet again.

    The truth of the matter is that while separation of powers works pretty well, it does it by breaking legislation and judicial review into a “short game” and a “long game” respectively. None of that has ever been apolitical.

    It still works, perhaps not as perfectly as a High School Civics book might imply, based on the long time averaging. Congresses can be flags in the wind, anchored by the slower game in the courts.

    I mean, people are saying the health care review hinges on the opinion of a Reagan appointee.

  19. Boyd says:

    On one hand, this order feels very schoolmarm-ish: “Write ‘I will not tell lies about judges’ 500 times.”

    On the other hand, this isn’t the first time that President Obama has taken unwarranted pot shots at the judiciary. While the judges and justices are supposed to just sit there and take it, there’s undoubtedly a point (and I’m not saying this is necessarily that point) where they get fed up with the abuse.

    And if the President wants to be treated with decorum and propriety by the judiciary, maybe he should treat them the same way. If we expect a judge to “rise above the fray,” shouldn’t we, at the very least, expect the President not to drag them into it in the first place?

  20. (When asked, Obama should have just made a standard “confident we will prevail” speech.)

  21. BTW, the shoe I haven’t heard drop is the “preconditions” thing. Something like 70% of Americans want insurance regardless of preconditions, but want to do away with the mandate. The court seems to be buying the (administration and insurance company) idea that they are bound, right? Does that become a teaching moment?

  22. Anderson says:

    Concerning this kerfuffle between the 5th and the administration, that media report appears to be a tad hysterical and overblown. Courts often ask in various contexts for supplemental briefing.

    People who actually practice law in the appellate courts can easily see that this commenter is ignorant or disingenuous, but perhaps others may be misguided.

    This was not a request for “supplemental authority.”

  23. Hey Norm says:

    But Boyd…
    Did Obama drag them there in the first place, as you say. Or did they put themselves there long before Obama? You can’t appoint a President…”limited to the present circumstance” or not…and claim to be above the fray.

  24. Brummagem Joe says:

    @Anderson:

    People who actually practice law in the appellate courts can easily see that this commenter is ignorant or disingenuous, but perhaps others may be misguided.

    Really? Nicko claims to be a lawyer with 17 years litigation experience.

  25. John D'Geek says:

    Question: has any president since Jackson actively and publicly asserted that the Judiciary has no real power? Is that not dangerous to both our society and rule of law?

  26. Franklin says:

    I didn’t read Steven’s post, which probably expands upon my initial thoughts here:

    Since I started following politics maybe 20 years ago, I don’t really remember offhand someone from the left crying ‘judicial activism’. So it’s just curious that the judges have sat silently through years and years of right-wingers whining about this, and suddenly feel the need to speak up when the wrong person says it. Very curious.

    (And yes, I think Obama’s rhetoric is wrong, just as most blithering about judicial activism has been. It’s called checks and balances, might wanna look it up.)

  27. Tsar Nicholas II says:

    @Anderson: I’m not sure that I’m picking up the jib of your jab. How is this not a request for supplemental briefing? There were a colloquy in the courtroom. We don’t know the exact details. That media report doesn’t provide any quotes. It doesn’t name its source or its sources. Then the judges apparently asked the DOJ to submit a letter brief. To me that doesn’t sound all that unusual. One time, Chief, we had a case before the 9th Circuit (a wage and hour class action decertification motion) and there was this discussion at oral argument and then the panel asked both sides to submit letter briefs on what we all thought was a tangential issue but which as it turned out the judges thought was critical. Granted, this kerfuffle between the 5th and the administration appears to be less legalistic and more a case of the judges flexing their muscles, but do we really know that for sure? How accurate is that media account? Is it a “fake but accurate” report?

    Still it appears to me to be much ado about not so much. But I’ve been wrong before and I’ll be wrong again. Maybe these judges simply are piling on and are smacking around the DOJ for no good reason. Then again, maybe this DOJ is so legally spaced out they need to be knocked into reality.

  28. MBunge says:

    @Franklin: “It’s called checks and balances, might wanna look it up”

    Except since at least Roe v. Wade in the modern era, the unanswered question is “What is the check and/or balance on the power of the Court?” And I’m talking about a practical limit on Court authority, not theoretical means that are never going to be used.

    Mike

  29. KariQ says:

    Both my instant and my considered reaction to this: Who the hell do these people think they are?

    They think they are the only real Americans left, living in a land where a secret Muslim foreign-born Socialist Marxist Totalitarian is intentionally and willfully destroying the country. And furthermore, he only “won” the election because of massive voter fraud by ACORN and similar organizations. Because there’s no way real Americans would ever have voted for him.

  30. ptfe says:

    There were a colloquy in the courtroom. We don’t know the exact details. That media report doesn’t provide any quotes. It doesn’t name its source or its sources.

    “Too lazy to look it up so I’m going to make a bunch of contrary assumptions” isn’t a very good argument. For everyone who’s curious, you can give the original audio a listen here. The government lawyer gets up around 17:00 in, and the exchange — including the obvious confusion of the government lawyer about what the judge is on about — starts just before 18:00 in. She tries repeatedly to steer Judge Smith towards the actual case before the court, but he keeps insisting that the presidential statement needs to be clarified, as though it’s somehow controlling. None of the other judges speaks up during the exchange.

  31. @John D’Geek:

    Question: has any president since Jackson actively and publicly asserted that the Judiciary has no real power?

    Are you suggesting that is what Obama did? If so, I would recommend reading the actual comments.

  32. mattb says:

    @Franklin:

    Since I started following politics maybe 20 years ago, I don’t really remember offhand someone from the left crying ‘judicial activism’.

    I gotta call bull on this. Yes, the right has more consistently used those specific words, however, there have definitely been liberals/progressives/dems who have been applying them to recent decisions like Citizens United.

    Further, if you buy into the argument that ‘judicial activism’ is code for politically motivated judgements, then you need to include the outcry from the left after Bush v. Gore.

    So it’s just curious that the judges have sat silently through years and years of right-wingers whining about this, and suddenly feel the need to speak up when the wrong person says it. Very curious.

    Stepping outside the actions of the 5th Circuit, generally speaking, most federal judges don’t typically speak out on these issues while on the bench. This goes doubly so for Supreme Court Justices.

    I will note that since she has stepped down, Sandra Day O’Connor has ellqouently attacking the idea of “judicial activism.”

  33. @John D’Geek:

    No John, no President (inclusive) ever has.

    See also:

    @Chad S

  34. Loviatar says:

    Since December 9, 2000, I’ve believed this country has been irrevocably broken.

    A divided court – along the lines of third world oligarchies – gave the presidency to their preferred political choice, with the caveat that their decision was a one time decision and could never ever be used as a precedent for subsequent decisions. WTF.

    So to put it bluntly I’m not shocked that blatant politicization is now evident at all levels of the judiciary.

  35. Wayne says:

    @James
    You are only assuming Obama will follow the Courts decision. He has already refuse other court orders including ending a moratorium on drilling. He went to war with Libya without Congresses approval. His administration has stated they only need the U.N. blessing not the Congresses on certain issues. He has used Government agencies like the E.P.A. to bypass Congress to enact policies like carbon caps which power is suppose to reside in congress.

    Saying this President respect the power and responsibilities of the other two branches is a very big stretch.

    I agree this 5th circuit actions seems odd. However the President actions have been odd. The President has stated that the courts don’t have the authority to strike down a law. If the government \President position is that the courts don’t have authority to overturn a law then it is reasonable for the courts to ask them to explain that position.

  36. mattb says:

    @MBunge:

    Except since at least Roe v. Wade in the modern era, the unanswered question is “What is the check and/or balance on the power of the Court?” And I’m talking about a practical limit on Court authority, not theoretical means that are never going to be used.

    The simple answer is the Constitution — they can’t declare it unconstitutional. The Court to some degree acts as its own check (as was the case with Brown v. Board effectively overturning Plessey).

    Additionally, there’s no reasons that Congress or local legislatures can’t re-craft laws to deal with the sections of the law that were ruled unconstitutional — as I remember the Kelo v. City of New London included more or less a framework for how the laws needed to shift to accommodate it.

    And as I think you previously noted, impeachment of Justices is always an options as well.

  37. mattb says:

    @Wayne:

    The President has stated that the courts don’t have the authority to strike down a law.

    Again, can you find the specific quote where he said that?

    Or are you suggesting that it’s *implied* in the word unprecedented?

    Because if you’re talking about implication rather than actual words, I’ll happily remind you about all the times you and others have complained about people on the left arguing about “implied” appeals to racism, “implied” hopes for the country to fail, and “implied” attacks on the poor.

  38. Loviatar says:

    @mattb:

    The simple answer is the Constitution — they can’t declare it unconstitutional. The Court to some degree acts as its own check (as was the case with Brown v. Board effectively overturning Plessey).

    Should we have to wait almost 60 years for the right thing to done?

    I think we all realize that some people are willing to put ideology above everything else (suicide bombers). In understanding that, what makes you think the current court won’t put ideology above the Constitution. See current strip search decision and its impact on the 4th amendment.

    FLORENCE v. BOARD OF CHOSEN FREEHOLDERS
    OF COUNTY OF BURLINGTON
    pdf

  39. Chad S says:

    http://thehill.com/blogs/healthwatch/abortion/201479-gingrich-perry-dismiss-courts-ability-to-challenge-antiabortion-law

    Gingrich said legislation he would support as president would prohibit judicial review. Perry simply asserted that he would ignore a negative ruling by the Supreme Court in such a case.

  40. David M says:

    The statements by Obama were really pretty mild compared to similar statements from Gingrich and Perry, so it’s hard to take the GOP complaints too seriously.

    As far as the judge goes, he’s done us all a favor and announced he is a Republican. Not a conservative judge who was nominated by a Republican, but a Republican who will support the team in his rulings.

  41. MBunge says:

    @mattb: “The simple answer is the Constitution — they can’t declare it unconstitutional. The Court to some degree acts as its own check (as was the case with Brown v. Board effectively overturning Plessey).”

    So, there really is not practical check on the authority of the Supreme Court. So, if this or some future Court decides there’s no Constitutional basis for Social Security, Medicare or Medicaid, we’re all just out of luck? If this Court decides that the last 50 years of civil and equal rights laws were all invalid infringments on property and free association rights, minorities and woman and gays and Jews and the disabled can all just suck it?

    Mike

  42. Socrates says:

    Chad S:

    Excellent link. Perfect.

  43. al-Ameda says:

    It seems that the Fifth Circuit has decided to become an active participant in 2012 electoral politics.

  44. Septimius says:

    My prediction is this: Clarence Thomas will either write or join an opinion that rules Obamacare unconstitutional. He will do this because he is southern and conservative, and obviously a RACIST!! He just can’t handle seeing a black man with power like our beloved President Obama.

  45. Hey Norm says:

    @ Wayne…

    “…The President has stated that the courts don’t have the authority to strike down a law…”

    Please link to the quote where he said that.
    See, here’s the thing…if you have to make things up in order to support our argument…then it ain’t much of an argument to begin with and perhaps you shuold re-evaluate your position.
    Unless you suffer from the Dunning-Kruger Effect.

  46. An Interested Party says:

    Hmm…this seems to be all of a piece

    Still… in recent history we have seen the sequence of:

    – The 5-4 ruling in Bush v. Gore, which 12 years ago was shocking not so much in its outcome as for the naked “results-orientation” of the five-member majority. (If you have forgotten: the ruling specified that it should not be used as precedent for any other decision, and was issued under circumstances that made it effectively impossible for the losing party to appeal.) For all of their esteem as the “swing” members of the court, the reputations of both former Justice Sandra O’Connor and current swingman Anthony Kennedy should forever be diminished by their having made up the majority. As John Paul Stevens said at the end of his memorable dissent:

    …[T]he majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

    – The 5-4 ruling in Citizens United, which two years ago revealed either a willed indifference or a genuine ignorance about the realities of politics through its assumption that unlimited corporate money would not have a distorting effect. As Dahlia Lithwick has pointed out, for the first time in a very long while, no one on today’s Court has ever run for public office, one of many signs of their insulation from the real world they are ruling on. All are products of either Harvard or Yale law school. [Update: thanks to those who have pointed out that Ruth Bader Ginsburg attended Harvard Law but transferred to Columbia Law School when her husband got a job in New York, and her law degree is from Columbia.] All have lifetime jobs, with health insurance. Stephen Colbert immediately saw what was hilarious about the Citizens United ruling, but Justices Roberts, Alito, Scalia, Thomas, and Kennedy decided not to. Though it’s tasteless to point it out, the Bush v. Gore ruling gave us two members (Roberts and Alito) of the Citizens United majority.

    – The 5-4 tone of questioning in last week’s Obama health care case (counting the mute Justice Thomas as an opponent, as everyone assumes he will be), which reinforced what John Paul Stevens called “the most cynical appraisal of the work of judges throughout this land.”

    Of course, the best line from Fallows…

    Eventually a sufficiently ruthless party will nominate Justices while they’re still taking their LSATs.

  47. An Interested Party says:

    My prediction is this: Clarence Thomas will either write or join an opinion that rules Obamacare unconstitutional…

    Clarence Thomas writes opinions? That’s extraordinary! Perhaps he thinks them up in his head as he dozes off while sitting on the bench…

  48. Septimius says:

    @An Interested Party:

    No. You’re confusing him with Thurgood Marshall. I wonder why you would make that mistake?

  49. Hey Norm says:

    @ An Interested Party…

    “…Though it’s tasteless to point it out, the Bush v. Gore ruling gave us two members (Roberts and Alito) of the Citizens United majority…”

    Even more f’ed up…Reagan and Bush41 accounted for 6 members of the Court that would give us Bush v. Gore which in turn enabled the appointment of Roberts and Alito who will aid in the overturning of the PPACA.
    OTB has taken the position that Novembers election doesn’t really mean all that much. Clearly OTB is wrong on this point. A Romney Presidency will be disastourous for the nation on many fronts…the Supreme Court no being the least.

  50. @Hey Norm:

    OTB has taken the position that Novembers election doesn’t really mean all that much.

    For the record, there is no “OTB” but rather three main authors and a handful of occasional contributors. There is certainly no OTB editorial position on any topic.

    Further, I don’t recall anyone directly stating that election doesn’t mean all that much, but perhaps I missed it/there is an interpretation issue here.

  51. Brummagem Joe says:

    @Septimius:

    Clarence Thomas will either write

    I doubt it. His clerks might. Outside the rightwing noise machine Clarence isn’t exactly viewed as a towering legal mind in the wider legal profession. It’s not a matter of color but of legal scholarship. However, your labored attempt at satire is noted.

  52. An Interested Party says:

    You’re confusing him with Thurgood Marshall. I wonder why you would make that mistake?

    Not really…Marshall may have dozed off while he was an old man, but Thomas is only 63, and it appears that he’s been napping for years…oh, and considering all that Marshall accomplished compared to Thomas, there really is no comparison…none at all…

  53. Hey Norm says:

    @ SLT…
    Yeah I know sorry…I just couldn’t remember who had written it off the top o’ my pointy little head.
    I don’t think there is an interpretation issue…unless it’s by the author…hehe

  54. Jenos Idanian says:

    So, what is the takeaway of this whole stir? I see several possibilities.

    1) “Words have consequences.”

    2) It’s foolish to ever take anything Obama says seriously — he’s always campaigning, so whatever he says doesn’t really mean anything.

    3) When the ultimate boss of the Justice Department appears to openly challenge the core principle of judicial review, judges just might take note and ask for clarification from that boss’s subordinate who happens to be appearing before them.

    4) The statements of private citizens who hold no official position in government (Romney, Santorum, Gingrich) should be given equal weight with the statements of the sitting President of the United States.

    5) For all his vaunted intelligence and education, especially in the field of Constitutional Law, President Obama needs at least two tries to enunciate his position on judicial review, balances of power, checks and balances, and such concepts.

    6) President Obama, who appointed two of the current Justices on the bench, doesn’t believe that the Justices should be appointed, but elected.

    Did I miss anything?

  55. @Jenos Idanian:

    Did I miss anything?

    Indeed, yes.

    1. Part of the point is that words are less consequential than we pretend. What matters are the actual institutional structures and actions. To get caught up in only words is, therefore, problematic (and a major error many observers of politics make).

    2. No: the point is that all politicians, save those who are retiring are always campaigning–especially in a, you know, campaign year. Again: see response #1.

    3. That’s not what he did, but rather a talk radio/pundiocracy version of what happened.

    4. Certainly said candidates for that job think so. Regardless: not sure of your point.

    5. Again: see #1 and my post.

    6. I have seen not claim along those lines. You have a quote?

    So, yes, again: much missed, much misconstrued.

  56. An Interested Party says:

    Did I miss anything?

    Talk about a softball question…Steven eviscerates Jenos, yet again…

  57. Franklin says:

    @mattb: Sure they’ve disagreed with rulings, and also accused judges of political leanings. I just don’t remember the left calling it ‘judicial activism’ as if the judges aren’t allowed to make rulings on passed laws. So you can call bull all you want, but you have to give a counter-example for me to see, and I honestly don’t remember any.

  58. Brummagem Joe says:

    @Franklin:

    I just don’t remember the left calling it ‘judicial activism’ as if the judges aren’t allowed to make rulings on passed laws. So you can call bull all you want, but you have to give a counter-example for me to see, and I honestly don’t remember any.

    You must have short term memory loss, Here’s one recent example and I’m sure some research would turn up plenty more.

    http://www.mcclatchydc.com/2010/01/26/82982/commentary-citizens-united-is.html

  59. Jenos Idanian says:

    @Steven L. Taylor:

    I don’t recall any president since FDR who made such a point of taking on the Supreme Court. Between this and the Citizens United lie at the State of the Union, Obama has shown his disrespect for the Court. And his calling the Justices “unelected” strongly implies he doesn’t approve of the process that puts them on the bench.

    Presidents, even those running for re-election, need to remember that they are president first and foremost, candidates second. I don’t think Obama has ever learned that.

    You’re obviously far more of a legal expert than I am, but Obama’s initial statement seemed, to me, to be saying that he didn’t think the Court could legitimately overturn a law passed by a “strong majority” (another lie) of Congress. And I am not the only one who read into that a challenge to the principle of judicial review. If I’m wrong, I’m in a lot of company — some very good company, including Professor Reynolds and the lawyers at Powerline.

    My citing of the GOP candidates was a direct response to the tu quoque citations of them. I thought those statements were stupid, but Obama’s were both stupid and very irresponsible.

    I think I mixed up the order a bit, but I believe I answered the points.

  60. @Jenos Idanian:

    And his calling the Justices “unelected” strongly implies he doesn’t approve of the process that puts them on the bench.

    This is a truly ridiculous attempt at trying to make something an issue that simply isn’t. This is pure talk radio nonsense. The court is, by definition, not elected. And, further, it is hardly unusual for persons who don’t like what the court is doing to point this out (or have you not been paying attention to, say, the Roe v. Wade debate for the last almost 40 years?). Seriously, how can it be an insult to point out a fact.

    Further: the presidency and the court are two of the three major institutions of the constitutional order. Are you really suggesting that the president (any president) can’t criticize the court?

    Presidents, even those running for re-election, need to remember that they are president first and foremost, candidates second. I don’t think Obama has ever learned that.

    What does this even mean? And really: being an elected official in an office that is up for reelection is to be perpetually (and by definition) a candidate. It is how the voters hold elected official accountable, by the way.

    You’re obviously far more of a legal expert than I am, but Obama’s initial statement seemed, to me, to be saying that he didn’t think the Court could legitimately overturn a law passed by a “strong majority” (another lie) of Congress. And I am not the only one who read into that a challenge to the principle of judicial review. If I’m wrong, I’m in a lot of company — some very good company, including Professor Reynolds and the lawyers at Powerline.

    Go look at the actual quote. I suspect that that will help.

    I think I mixed up the order a bit, but I believe I answered the points.

    I have my doubts on that count, I must confess

    Seriously: this whole line of discussion is silly. The president engaged in politics. He is hoping to influence public opinion and maybe the court. This leads me to ask a) so what? and b) such is the nature of our system.

    But again, and more fundamentally: the words aren’t the issue. The actions will be. If the court strikes down the law, the president will comply. He will have no choice and all the rhetoric will have evaporated into the ether.

  61. wr says:

    @Steven L. Taylor: ” Are you really suggesting that the president (any president) can’t criticize the court?”

    Not ANY president. Just a Democratic president. Or a black president.

  62. An Interested Party says:

    …I’m in a lot of company — some very good company, including Professor Reynolds and the lawyers at Powerline.

    In the above statement, the phrase “very good” doesn’t mean what you think it does…

  63. Jenos Idanian says:

    @Steven L. Taylor: I see my “polite deference to my host” is apparently keeping me from speaking clearly enough. I’ll temper it down to blunt candor.

    OK, let’s go back to that original, un-walked-back, un-cleaned up quote, courtesy Powerline:

    I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.

    And I — I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint; that, uhhh, an uninelected, uhhh, group of — of people would somehow overturn, uhhh, a duly constituted and — and passed, uh, law. Uh, well, uh, uh, is a good example. Uhh, and I’m pretty confident that this, — this court will recognize that, uh, and not take that step.

    In how many ways was this wrong? Let’s go right down the list.

    1) “…unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

    A) The Supreme Court overturning a law is hardly unprecedented or extraordinary.
    B) The PPACA was NOT passed by a “strong” majority — 60-39 in the Senate, 219-212 in the House. If one senator or four Representatives had voted differently, it would have failed.

    2) (Cleaned up) “I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint; that an unelected group of people would overturn a duly constituted and passed law. Well, this is a good example.”

    The “unelected” in this context is clearly pejorative, and Obama was applying it in a pejorative sense here. I’m more used to hearing it applied to bureaucrats, but the context is the same: the notion that some official who is, by and large, unaccountable to the general citizenry is exerting control over our lives.

    This is the logical extension of Obama’s attack on the Court during his State of the Union Address over Citizens United: in both cases, Obama allowed his displeasure with the Court to express itself in an attempt to intimidate the Court, and in both cases he lied about fundamental matters to carry out the attack. In Citizens United, he declared that the decision would allow foreign corporations to give unlimited funds to sway American elections; here, he said that it would be “unprecedented” for the Court to strike down a law, and that the PPACA was passed by a “strong majority.”

    And calling it just “politics” or “campaigning” doesn’t make it all better.

  64. @Jenos Idanian: No, you are making yourself quote clear: you want to make a politician making a political statement and blow it up into some sort of controversy.

    Yes, Obama exaggerates with the first part of the statement, although the majorities where pretty large in the Senate given the whole super-majority thing.

    The “unelected” in this context is clearly pejorative

    This is all nonsense designed to try and make a statement of fact (and a common argument, regardless of ideological position regarding courts v. legislatures) into some sort of scandalous utterance.

    Weak Tea indeed.

  65. Jenos Idanian says:

    @Steven L. Taylor: Are you speaking as the unelected moderator of this blog?

    And I disagree with your assertion that simply proclaiming Obama’s statement “political” means it’s stripped of any meaning or substance. It smacks of the idiot wr’s habit of calling something a “talking point” — in both cases, it’s intended to exempt the speaker from actually having to address the point in question.

    Perhaps Mr. Obama ought to start wearing hats when he makes his pronouncements. That way, we can tell when “Candidate Obama” is speaking, and we can assume that he’s only speaking “politically” and we discount whatever he says, and when “President Obama” speaks and we should pay attention. That would make it a lot easier.

  66. Jenos Idanian says:

    @Steven L. Taylor: Further, Obama didn’t say the bill passed the Senate by a “strong majority,” but Congress. The net totals were 279 in favor, 251 opposed. And the size of the majority vote is irrelevant as to the law’s Constitutionality.

  67. @Jenos Idanian:

    Are you speaking as the unelected moderator of this blog?

    Oddly enough, yes.

    Truth and all.

  68. @Jenos Idanian: I totally agree that he exaggerated. I even agree with James Joyner’s characterization of the statement as “grandstanding.”

    However, one does not need a Ph.D. in political science to know that politicians rather frequently exaggerate and grandstand.

  69. Jenos Idanian says:

    @Steven L. Taylor: However, one does not need a Ph.D. in political science to know that politicians rather frequently exaggerate and grandstand.

    But only certain ones should be called out when they do so? Especially those who “exaggerate and grandstand” from the bulliest of pulpits?

    Obama, by his background, has even less excuse than others for not getting basic facts right in this area. His educational and professional background proclaim him to be an expert on this. Imagine the howls were Mitt Romney to confuse “revenues” and “profits,” or Newt Gingrich to speak of the House Speakership being a popularly-elected position. We’d never hear the ends of it.

    Add in Obama’s position as the ultimate head of the Justice Department, the “defendant” in the case being discussed, and his statements — even the “political” ones, even the “exaggerations” and “grandstandings” — take on even more weight.

  70. @Jenos Idanian:

    Add in Obama’s position as the ultimate head of the Justice Department, the “defendant” in the case being discussed, and his statements — even the “political” ones, even the “exaggerations” and “grandstandings” — take on even more weight.

    Because, of course, the President’s views on the policy under review and his preferences regarding the Court’s decision was unknown until now.

  71. mattb says:

    @MBunge:

    So, there really is not practical check on the authority of the Supreme Court. So, if this or some future Court decides there’s no Constitutional basis for Social Security, Medicare or Medicaid, we’re all just out of luck? If this Court decides that the last 50 years of civil and equal rights laws were all invalid infringments on property and free association rights, minorities and woman and gays and Jews and the disabled can all just suck it?

    To some degree, yes. I also suspect that any court that did this would immediately face impeachment.

    But, before the histrionics begin, let me point out that this hypothetical relies upon a pretty strong “if.” And we could easily create “if” scenarios for any of the branches of our government…

    What if a President decided to go completely nuts with signing statements or suspend Habius Corpus? Or what if a veto proof majority of both houses of Congress decided to create a whole swath of new authoritarian laws?

    Yes, there are always checks and balances, but the nature of the different branches has historically been to find different ways of getting around them (or at least pushing the limits of them).

  72. Jenos Idanian says:

    @Steven L. Taylor: Ah, if only Obama’s remarks had been limited to that, and he hadn’t let his mouth run off on him… again…

  73. Jenos Idanian says:
  74. An Interested Party says:

    Perhaps Mr. Obama ought to start wearing hats when he makes his pronouncements.

    Umm, in case you didn’t know, a politician is political…that’s what sorta makes one a politician, ya know? I’m wondering if you were this upset when the Bush Administration was using the War on Terror for their own political purposes…

  75. Jenos Idanian says:

    @An Interested Party: I have said that Obama is not my candidate, but he is my president. If he’s always the Candidate, does that mean I don’t have to consider him my president? I didn’t like it when the left said it for Bush, but if that’s how the rules are nowadays, I might have to reconsider…

  76. Tlaloc says:

    I’m amused to hear so many conservative suddenly discover their deep and abiding love of marbury, you know the case they usually rail on about as the original activism sin.

  77. Jenos Idanian says:

    @Tlaloc: You’re not as amused as I am when I consider how liberals are howling that the Supreme Court might do with ObamaCare the same sort of thing they did in Brown v. Board of Education (which was roundly attacked by mainly Democrats, as I recall) or Loving or countless other similar cases.

    Hell, “Separate but Equal” was not only federal policy, but protected by Supreme Court precedent. Wasn’t that awful of the Court to overturn something backed by so many people?

  78. An Interested Party says:

    (which was roundly attacked by mainly Democrats, as I recall)

    Yeah, and the ideological and spiritual heirs of those Democrats are today’s Republicans….

  79. mattb says:

    @Jenos Idanian:

    Brown v. Board of Education (which was roundly attacked by mainly Democrats, as I recall)

    You don’t recall correctly. In the South, there was an outcry among Southern Conservative Democrats. And as an Interested Party points out, when one looks further, you see that Brown + the Civil Rights act led many of those Democrats to shift party affiliation.

    When one loos more broadly, you’ll find that the majority of outcry (to this day) around Brown was among conservatives. In fact, Brown lead the conservative John Birch society to begin it’s famous “Impeach Earl Warren” campaign.

  80. Enrique says:

    I am not an attorney, but according to the Rules of Judicial Conduct, the following is included as “cognizable” judicial misconduct:
    (1) is conduct prejudicial to the effective and expeditious administration of the business of the courts. Misconduct includes, but is not limited to:

    (D) treating litigants or attorneys in a demonstrably egregious and hostile
    manner;
    (E) engaging in partisan political activity or making inappropriately
    partisan statements;

    I would argue Judge Smith’s repeated reference to a federal law as “Obamacare” falls under “making inappropriately partisan statements.” Furthermore, unilaterally requiring Justice Department attorneys to explain the President’s remarks because he didn’t like them, seems to be a “demonstrably egregious and hostile” treatment of attorneys. And, his conduct is certainly prejudicial to the effective administration of the business of the courts.

    So, will any officer of the court who has a problem with this judge’s behavior have the courage to file a complaint?

  81. Joe Ripp says:

    @Jenos Idanian: Your statement is true. However President Obama’s Statement that it was passed with by a strong majority.It passed by a majority at best. However his exaggeration shows his nefarious nature. Just like promised if you like your healthcare insurance you can keep it.And now he and his his staff are plotting to push the military and military retirees Tricare insurance that they were promised for spending a minimum of 20 years of service for less money than we could have made on the outside. Planning on the healthcare and small pension would allow us to make up for the lower wages and the honor of serving our country. Now president Obama while protecting the Mandarins/government workers and union workers /Obama supporters he pushes our military retirees onto rationed Obamacare. With 15 unelected members of a board will decide who gets what under the rationed care. While Obama’s more equal pigs will get to keep their so called Cadillac plan. Many in Congress are opposing the proposed changes, which would require the passage of new legislation before being put in place.

    “We shouldn’t ask our military to pay our bills when we aren’t willing to impose a similar hardship on the rest of the population,” Rep. Howard “Buck” McKeon, chairman of the House Armed Services Committee and a Republican from California, said in a statement to the Washington Free Beacon. “We can’t keep asking those who have given so much to give that much more.”

    Administration officials told Congress that one goal of the increased fees is to force military retirees to reduce their involvement in Tricare and eventually opt out of the program in favor of alternatives established by the 2010 Patient Protection and Affordable Care Act, aka Obamacare.

    “When they talked to us, they did mention the option of healthcare exchanges under Obamacare. So it’s in their mind,” said a congressional aide involved in the issue.

    Military personnel from several of the armed services voiced their opposition to a means-tested tier system for Tricare. See more at http://freebeacon.com/trashing-tricare/

  82. David M says:

    @Joe Ripp: The Tricare cuts have nothing to do with Obamacare, and everything to do with the automatic sequestration cuts both the GOP and Democrats put into place last year. (And there is no rationing in Obamacare. None.)

  83. Joe Ripp says:

    @Wayne: I totally agree with your statement. After reviewing AG Holders failure to prosecute the members of the new black panthers party. I do not trust him to uphold any law he does not agree with. You cannot pick and choose as it appears he has done in this case because the defendants were black. What happens this fall if there is reoccurence of obstructing voters. If this happens and Obama is victorious , will Holder once again ignore the crime. If I a white had done the same thing I would be in Federal prison. As President Obama did not correct Holder on this issue, there is no reason to believe Holder will protect polling places!
    http://www.theblaze.com/stories/holder-focus-on-black-panther-case-demeans-my-people/

  84. David M says:

    @Joe Ripp: you’ve got most of that wrong. The decision to drop the charges was made while Bush was still in office, and the was never any evidence of actual voter intimidation. Without a voter complaint there really was nothing, but that hasn’t stopped conservatives from trying to make it into something more.

  85. Jenos Idanian says:

    @David M: No, David, you got it wrong. The original charges were filed in January 2009 by the outgoing Bush administration. The court proceedings were in April 2009, and the defendants didn’t show. The prosecutors filed for a default judgment (par for the course when the defendants blow off court), but were overruled by Obama appointees.

    You might do better dismissing the story if you didn’t have to make up stuff to bolster your case.

  86. Joe Ripp says:

    @Mib:Thank you there is a voice of reason on this mutual admiration society board, After all Obama has been disregarding the Congress on appointment confirmations and getting away with it. Someone needed to bring him back to the real world and make him realize he is not the king!