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This week’s high profile lesson in Marbury v. Madison


By Jacob Combs

In case you missed it, there was a bit of judicial feather-ruffling that took place this week which culminated yesterday in an almost comical high-profile homework assignment.  On Monday, President Obama spoke to reporters and expressed his confidence that the Supreme Court would find the Affordable Care Act constitutional, calling it an example of the “judicial activism” that conservatives claim to detest and saying, “Ultimately I am 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.”

Cue the outrage.  Rush Limbaugh called the President a “thug,” saying his comments were “chilling” and tantamount to “threatening” the Justices.  Senate Minority Leader Mitch McConnell told Obama to “back off,” arguing that anyone worried about (you guessed it) ‘liberty’ should be concerned by his comments.  The next day, Obama walked back from his previous rhetoric, clarifying that he would of course respect the Court’s ruling, but noting that the Court has “traditionally exercised restraint and deference to a duly elected legislature.”

Obama’s original comments were clumsy, especially for a former constitutional law scholar.  There should be a bipartisan political moratorium on the use of the word “unprecedented”: a Court ruling striking down Obamacare would be no more “unprecedented” than the law itself is an “unprecedented” use of Congress’s spending power, as its critics argued before the Supreme Court.  And, of course, it’s a bit humorous seeing Republicans jump suddenly to the defense of the Court’s independence, when several of the party’s candidates for president this year said that they would simply ignore Supreme Court rulings that they didn’t like, and one went so far as to say he would send federal marshals to compel judges to appear before Congress and explain rulings that he didn’t agree with.

The semi-controversly, as it were, should have ended there.  But then, in an unexpected twist, Jerry Smith, a Republican-appointed judge on the Fifth Circuit Court of Appeals, lit into a government lawyer arguing a case about another element of the Affordable Care Act, saying that Obama’s comments had “troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review.”  He and the two other Republican-appointed judges on the appeals panel then assigned the Justice Department a homework assignment: a three-page, single-spaced memo explaining why the federal courts have the authority to determine the constitutionality of federal laws.

The Obama administration turned in its homework on time, writing (of course) that “the power of the courts to review the constitutionality of legislation is beyond dispute.”  Still, as the New York Times observed, Holder also wrote that the Court has historically operated under the presumption that acts of Congress are constitutional, and that the executive branch has argued before that the Supreme Court should respect Congress’s legislative decisions.

Never one to be outdone in his rhetoric, Jeffrey Toobin, legal analyst for CNN and The New Yorker, called the Fifth Circuit court’s actions a “judicial hissy fit” and an “embarrassment to the federal judiciary.”  Toobin’s choice of words aside, he is on to something here.  Obama is a politician, and even though his words were poorly chosen, it is of course the right of the executive branch to stand up to another branch of the federal government and defend its own interests.  This is the very reason that we have a separation of powers vested in three equal branches of government: the President can throw around words like “unprecedented” all he wants, but ultimately, it is only the judiciary’s responsibility to actually decide the constitutionality of laws.

What surprised so many observers at last week’s Supreme Court arguments was the fact that the language of the questioning seemed so nakedly political, as opposed to being couched in the usual terms of precedent and judicial restraint.  The judiciary should stay out of the political process and remaining impartial.  In making the Justice Department write a take-home report on a 209-year old decision, Judge Smith went too far, risking the appearance (or even worse, the reality) that the court’s are simply another partisan system in American politics.


  • 1. Richard Lyon  |  April 6, 2012 at 10:44 am

    From the news stories I saw Holder's letter was only 2 1/2 pages long. That is likely to result in yet another phony constitutional crisis. The federal judiciary lost shreds of it's political dignity with Bush vs Gore.

  • 2. bayareajohn  |  April 6, 2012 at 10:48 am

    I feel the homework was merited. It should have been assigned to heads of congress too, and part of the assignment should be reading it aloud to their constituents. And promoting the abolishment of the phrase "activist judges".

  • 3. Rich  |  April 6, 2012 at 10:55 am

    This is all well and good but here is my concern. What do we say when the courts decide that DOMA, an act of Congress, should be considered Constitutional because there is a presumption on the part of President Obama that acts of Congress are generally considered Constitutional?

  • 4. James Sweet  |  April 6, 2012 at 11:08 am

    Obama’s original comments were clumsy, especially for a former constitutional law scholar.

    Obama's comments were worse than "clumsy", they were factually incorrect (unless the definition of "unprecedented" and "overwhelming majority" changed since the last time I checked), they were ridiculous, they were simple demagoguery.

    Nevertheless, the Right's reaction to it has been hilariously hypocritical. So… Obama said the same dumb-ass crap you've been saying for years, and now all of a sudden it's the most shocking thing ever? No it's, just typical dumb-ass politician-speak. The only people who have a right to criticize Obama over this are people who were just as eager to criticize right-wing politicians over their absurd little "judicial activism" meme. (That would include me, by the way. Neener, neener.)

  • 5. Sheryl_Carver  |  April 6, 2012 at 11:09 am

    That's exactly what I've been thinking, Rich.

    All those in government, including the president, should think more carefully before they speak. As should we all …

  • 6. grod  |  April 6, 2012 at 11:10 am

    As usual Rich you see the bigger picture. G

  • 7. Carpool Cookie  |  April 6, 2012 at 11:38 am

    I wonder if there will now be an investigation: DID THE PRESIDENT HAVE SOMEONE WRITE HIS PAPER FOR HIM ? ? ?

    As to Rush Limbaugh called the President a “thug,” saying his comments were “chilling” and tantamount to “threatening” the Justices.

    Jebus. Calm down, Mary!

  • 8. bayareajohn  |  April 6, 2012 at 12:28 pm

    Neener +1

  • 9. erasure25  |  April 6, 2012 at 12:33 pm

    Why do we pretend that courts are void of political agendas. There's a reason we call judges conservative or liberal. They are euphemisms for Republican or Democrat. The question is whether a judge can put aside their own political agendas and rule based only on evidence. Sometimes they can and sometimes they can't. The danger is that there are only very limited ways to enforce judicial neutrality. Retention votes are one way. Maybe its time for the Supreme Court to undergo retention votes every 10 years or so.

  • 10. Steve  |  April 6, 2012 at 12:46 pm

    Judicial activism is when a court decides something you don't agree with. Everything else is justice

  • 11. Steve  |  April 6, 2012 at 12:48 pm

    Voting for judges is one of the most insane ideas ever. It's the surest way to destroy an independent judiciary. Term limits are the far better solution

  • 12. Kathleen  |  April 6, 2012 at 12:51 pm

    Well, it is true that acts of Congress are given a presumption of constitutionality… unless they impact a fundamental right or a protected class of people. In those cases, this presumption disappears, the burden shifts to the feds to justify the law, and a stricter standard of judicial review is required. This is precisely why the DOJ is now arguing that gays & lesbian should be considered a protected class and DOMA should be subjected to heightened scrutiny.

  • 13. Kathleen  |  April 6, 2012 at 12:54 pm

    I don't see how retention votes enforce judicial neutrality. Seems to me that any time you put a judge up for a vote, it leaves the process open to even more partisan politics.

  • 14. Pau  |  April 6, 2012 at 12:54 pm

    Rich – When he clarified (or backtracked on) his remarks he said he specifically meant economic laws based on the Commerce Clause, which is the issue at play in the healthcare case.

  • 15. bayareajohn  |  April 6, 2012 at 4:53 pm

    So Economic laws should be exempt from constitutional review? This is news.

  • 16. Kathleen  |  April 6, 2012 at 5:06 pm

    Enjoying a presumption of constitutionality isn't the same as being exempt from review any more than a presumption of innocence exempts someone from being tried for a criminal act.

  • 17. bayareajohn  |  April 6, 2012 at 5:21 pm

    Exactly. A presumption merely identifies which side has to prove their case.

  • 18. Chris in Lathrop  |  April 7, 2012 at 9:43 am

    Being naturally suspicious of *all* politicians, I'm right there with you. I don't think We the People have ever elected, for lack of a better term, a saint, but I certainly don't see much malice coming out of Obama the way I do almost every Republican in office.

  • 19. Chris in Lathrop  |  April 7, 2012 at 9:45 am

    As polarized, uninformed, and misinformed as the general voting public has become, what you're suggesting amounts to a ten-year, single term for each appointed judge.

  • 20. Sagesse  |  April 7, 2012 at 10:24 am

    FWIW, in Canada there are nine justices on the Supreme Court. The retirement age is 75. There is stability, but as a result of the turnover, the Supreme Court bench is more representative of the population than the US court. For example, we have four women justices out of nine, including the Chief Justice. We also have regional representation… when a Quebec judge retires, he/she is replaced with a judge from Quebec. No judges at any level are elected (and in my opinion, electing or confirming judges by popular vote is one of the worst ideas ever).

  • 21. _BK_  |  April 8, 2012 at 12:22 am

    Sounds like a good idea. To be expected, of course, from Canada. :)

  • 22. Steve  |  April 8, 2012 at 4:02 am

    FYI, the only countries that elect judges are the US, Switzerland and Japan. That only shows that it is generally considered a bad concept

  • 23. Steve  |  April 8, 2012 at 4:03 am

    *only = alone

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