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Right wing memes gone wild

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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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