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Right wing memes gone wild


Scott links below to Ruth Marcus’s inane pearl-clutching over how Obama criticizing the Supreme Court could be interpreted as an Assault On the Rule of Law and Thus Our Most Sacred Freedoms. Apparently some sort of signal went out from the Bat Cave today. Behold the Fifth Circuit of our federal appellate court system:

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.

Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick–both Republican appointees–remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don’t have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama’s comments yesterday about judges being an “unelected group of people.”

I’ve reached out to the White House for comment, and will update when we have more information.

Now it’s always difficult to beat a federal judge for sheer pomposity so in a sense there’s nothing particularly surprising about this sort of thing. But reading His Honor’s stern inquisition of the unfortunate DOJ lawyer — who I imagine was taken aback by the need to take time from her argument to cite Marbury v. Madison — brought to mind the following little story: A very distinguished professor of constitutional law — a man widely viewed as a conservative at least in legal academic circles — was asked recently to write an essay for a prominent conservative opinion magazine on some current legal controversies, including Citizens United decision and the ongoing litigation over same-sex marriage rights. He used the essay as an occasion to reiterate certain fundamental criticisms of the culture of judicial review, and in particular the mental habits that culture inculcates in judges.

The essay had gone through the editorial process and was in press when the Editor in Chief of the publication decided not to run the piece. Needless to say the author was both surprised and annoyed by this reversal, and had several conversations with the EIC about it. In sum, the EIC explained that it was now the policy — or what I believe in another time and place would have been referred to as “the line” — of the publication that it should not be encouraging basic criticisms of judicial review as a legal practice and cultural phenomenon “at this time.” In the course of these conversations it became very clear to the author that “at this time” meant “when this practice has once again become on the whole beneficial to the political goals of American conservatives.”

BTW the author is one of maybe five people in legal academia who is genuinely critical of judicial review without regard to outcomes in particular cases.

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  • Warren Terra

    Okay, that is seriously fncked up. At least when Scalia (I think it was Scalia) mouthed off to the press about how awful it was for the President to criticize a Court Ruling in the State Of The Union he was just playing the political game. Demanding that the DOJ put it in writing that there hasn’t been an executive-branch coup is the sort of thing random unmedicated Sovereign Citizens do, not three-member panels of Federal Judges.

    • Anderson

      I am sincerely wondering whether Smith has had some kind of stroke. He used to be a smart judge – conservative as hell, but smart.

      • SpectCon

        As juvenile as this Judge is being, it makes one wonder if he isn’t sipping the Kool-Aid, believing Obama to be some socialist, Islamic militant.

        You’re a federal judge, not a guest on Fox and Friends…have some dignity.

        • kth

          That’s THE untold story, imho: the degree to which right-wing political and corporate elites aren’t merely distributing the ideological equivalent of crack, but have developed a habit for the stuff themselves.

          • timb

            This. They hear it so much, many of the rank and file are now as crazy as their propaganda.

            I had a whip smart History professor at my little undergrad school. Guy was conservative as hell, but he wasn’t some talk show retard. He was Mike Pence’s mentor, so he wasn’t, you know, THAT smart, but still.

            Soon after 9/11, he began asserting the government’s right to hold Americans without trial and talk about how global warming was a myth and now? Now, he actually speaks to groups of talk show fans, giving them David Barton-esque explanations for the Founding.

            Their entire movement fell apart. The best part is, Buckley got to see it before he died. He deserved seeing it collapse.

        • In issuing the order, Smith referred to ACA as “Obamacare”. Full teatard.

    • timb

      The local PI attorney/talk show host in my hometown has mentioned several times before 2012 how he opposed Marbury. Now, I guess he like it

  • SpectCon

    Obama should answer by withholding the Judge’s paycheck.

    • Anderson

      Oh that will calm things down all right.

      • R Johnston

        You can’t argue with flat-out crazy people, at least not to any kind of successful ending.

        Civil commitment proceedings are in order here.

    • Eddie Dean

      Ya’ know, we all (both sides) assume that Obama’s some clever politician, but lately, he just looks like he’s flailing….lashing out at anyone and anything that doesn’t bow to his will.
      The crack at the State of the Union about “Citizens United”, the current attack on SCOTUS, suing states that are trying to protect themselves because this administration won’t do their job with immigration, suing a local sheriff in Arizona….the list is daunting.
      It’s as if a King is thwarted and is lashing out, and it makes the presidency look ugly.

      I wish he were a better man.

      • redwoods

        That scraping sound you hear? It’s my eyes rolling that hard.

        • timb

          We replaced an anonymous troll with a concern troll?

          Personally, I don’t find that an improvement

          • cpinva

            you make do with the trolls you have, not with the trolls you wish you had.

            • JohnR

              With trolls, I usually prefer the known unknowns to the unknown unknowns, and both those to the known knowns. There’s a sort of Heisenberg joke lurking in there, but every time I got a look at it, it became unfunny.
              Incidentally, reading all this reminded me of the comment by Napoleon Porcus that “situational ethics bad, situational principles good!”

              • Bill Murray

                but how could you forget the unknown knowns?

              • firefall


  • tucker

    Maybe it’s 11th dimensional chess. If the SCOTUS upholds the law, then it’s end of discussion. It has been approved by the ultimate deciders. If they reject it, then they’re rejecting the New Deal and 20th century federalism. Opens a Pandora’s box that the big money guys won’t necessarily like.

    Then again they could do anything and say don’t use this as a precedent ala Bush v. Gore. It’s good to be king. Oops SCOTUS.

    • Uncle Kvetch

      If the SCOTUS upholds the law, then it’s end of discussion.

      If only. But I fear Mr. Pierce has the more accurate take.

    • SpectCon

      I think it’s just Obama in campaign mode and a nutty old judge who’s bored and looking for attention.

  • Davis X. Machina

    Extremism in the defense of extremism is no vice.

  • Anderson

    Now, in a remark he made today, Obama shows some signs of being excessively stressed, or sleep-deprived, or something:

    THE PRESIDENT: Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal.

    From a man who used to teach con law even briefly, that is a really strange error to make. Dude needs to take some time off this weekend.

    • Paul Campos

      See also etc.

      I guess you could argue neither Lopez nor Morrison involved things “most people would clearly consider commerce.”

      • Anderson

        Yah, I can spot him Lopez and Morrison, but not striking down the centerpiece of New Deal industrial policy. Hello? Court-packing scheme, was a response to …?

        • timb

          Yeah, but I think he’s more right than wrong. These people DO want to go to Lochner. George freakin’ Will wrote an essay praising just last year

      • timb

        See, I always agreed with the rationale of Lopez, although not Morrison.

        Personally, I think Federalism is just a corporate hack’s excuse to allow Mississippi to think they can still screw African Americans, but I wasn’t that troubled by noting interstate commerce in guns is not affected by them being near a school.

  • rea

    You know, to an old apellate lawyer like me, this is like watching the preacher spit on the floor of the church. Judges are not supposed to take note of things on TV or in the newspapers that are outside the record of the case. For them to do so is grossly improper.

    On the record, the DOJ conceded the issue. It doesn’t make any difference that the president made some remarks on TV, even if the president really had said that judicial review was an unconstitutional usurpation.

    • efgoldman

      On the record, the DOJ conceded the issue. It doesn’t make any difference that the president made some remarks on TV…

      Well, yesterday SCOTUS eviscerated the Fourth amendment. Maybe today’s WingNut judge meme is to start working on the First.
      Except the part about establishment of religion, which they’re going to start promoting next.

  • Mossberg

    Judges are not supposed to take note of things on TV or in the newspapers that are outside the record of the case. For them to do so is grossly improper.

    Good GAWD, man!

    Were you “on the pipe” when Justice Breyer defended looking to foreign laws for guidence?

    What does the sky look like you YOUR world?

    • Anderson

      Mossy, the court can look anywhere it wants for the law. It’s not supposed to take account of facts outside the record.

      If you want to make your point and skewer Breyer, the video-games case is what you want to cite. Tho Scalia’s best snark cut against Alito ….

    • Mutaman

      “What does the sky look like you YOUR world?” (sic)

      Well argued!

    • Walt

      Do you ever get the feeling that conservatives just have a long weird list of grudges, and just cycle through them?

    • wengler

      You do realize that our whole system of jurisprudence is built on foreign law?

      Do you have any idea about what a justice system is supposed to do?

      • Warren Terra

        A disturbing number of Wingers believe our Constitution comes not from a group of people studying foreign theories and experiences of government but instead from Divine Inspiration. Thus you get the Actual Republican Politicians who say that the Constitution can only be interpreted correctly if viewed from a biblically inspired viewpoint, because of their common origins.

      • firefall

        Well much of the ‘justice’ system doesn’t, how can you expect others to?

  • Scott Lemieux

    My money’s on Robert Nagel…

  • dp

    I find it depressing to have my greatest feelings of cynicism so often confirmed, and then exceeded.

  • JMG

    Obama should call these judges out by name, say they are unfit to serve on the federal bench, and say they represent the Republican party’s attempt to govern by unconstitutional means.
    If they want to play politics, let ’em learn what politics is, home addresses on the Internet and all the rest.

    • dp

      The three-page, single-spaced brief should include an opening paragraph setting forth the principle of judicial review as articulated in Marbury v. Madison, and the remainder concerning the importance of stare decisis, as detailed ad nauseum by conservative judges for the last 223 years.

      • Anderson

        The Volokh commenters did better: they noted the absence of any maximum font-size requirement, and suggested that the letter pose the question “does the President adhere to the doctrine of judicial review?” and then have three pages with Y-E-S on them.

        • timb


        • Hob

          Oh God, I so want Obama to do this. Let us be able to say in a thousand years that there was one single thing in the history of early 21st century American politics that was purely and harmlessly funny.

        • rea

          I don’t practice is the 5th Circuit, but the 6th Circuit has a font size requirement (14 point type!) applicable to all briefs, and a guy with a ruler whose job it is to enforce it.

          • Warren Terra

            Are you allowed to get cute with the word spacing so the text will be a giant letter if looked at from a distance?

            Ah, forget it. Expending effort to point out to the judge that he’s an asshole is wasteful and probably dangerous. The best thing is to hope that Jon Stewart and Rachel Maddow make the Judges into national laughingstocks.

          • Anderson

            Yes, but this is a “letter,” not a brief.

          • R Johnston

            In these days of word processing programs it’s not much more work to simply repeat the word “yes” as many times as necessary to fill up three pages given a font size requirement than it is to type it out once.

            • Hogan

              Or “All work and no play makes Jack a dull boy.”

              • West of the Cascades

                The court rules say the font size has to be “14-point or larger.” So Y-E-S would be fairly brilliant.

  • Icarus Wright

    Shorter rightwing screechfest:

    Obama doesn’t respect Authoritah!

  • timb

    If someone already wrote this, then I apologize, but isn’t Judge Smith’s assholish behavior the very point of people who criticize judicial review. You have two parties, one represents the Executive branch, the other a private plaintiff and both feel the need for this suit and this judge takes billable hours away from the plaintiff’s clients and time away from the DOJ letter so someone can assuage his vanity?

    If there was ever an argument for ending lifetime appointments, this arrogant ass just illustrated it.

  • J (reader)

    I went to law school with Dana Kaersvang, the DOJ lawyer. Very, very smart.

    Nothing else to add really, just that I’m glad the best & brightest are working for Obama.

  • calling all toasters

    The next step will be to order Obama to appear, because the court didn’t believe that his 3 page homework assignment was answered sincerely. Then comes the trial by fire….

    • Warren Terra

      Trial by fire? Who not be more traditional? If Obama floats he’s a witch, if he drowns he was innocent, or maybe the wrong sort of witch.

      • JohnR

        Just weigh him against a duck. That way you avoid all the sticky Secret Service entanglements.

    • wengler

      If he picks trial by champion, he could at least let Biden into the ring to rip somebody apart.

      Biden v. Cheney fight to the death would be epic.

      • Rhino

        As of just recently, Cheney finally has a heart Biden could rip out.

  • Mike D.

    So, are they really going to write the brief or whatever? That seems like kind of a semi-big deal if it happens.

    • Anderson

      It’s that or respond to a show-cause order. Would you really want THIS judge crafting a contempt penalty against you?

      No. No, you would not.

      • Barry

        Gitmo the judge.

        I’m not joking; I’d really like to make right-wingers understand what they’ve done, and IIRC the Fifth circuit is a wingnut haven, which has endorsed the worst war crimes of the Bush administration.

  • Pingback: The Mahablog » They Were Against Judicial Activism Before They Were For It()

  • notjonathon

    Where were these judges when Republican lawmakers were threatening “activist judges” with trial by Smith & Wesson?

    • Barry

      Having absolutely no problem with it.

      It’s not a case of the Judicial Branch pushing back, or they’d have hammered Republican officials and politicians twice daily.

      It’s a matter of the right not respecting the Constitution or the legitimacy of an opposing party.

  • dl

    what about cutting and pasting Marbury v Madison from Wikipedia?

    • Federalist 78 is even better. It contains wonderful statements such as “According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR”; “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”; “it can never attack with success either of the other two”; “The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.”

      The whole thing is about 3 pages long and some judicious (heh) use of bolded passages would make the point while at the same time responding to the order.

      • Anderson

        Good idea, Mark. I doubt anything that amusing will result, however.

  • Yeah, I doubt the DOJ has any sense of humor about this. But I thought I’d post the suggestion where I know they’ll read it. :)

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