The United States Court of Appeals for the Fifth Circuit may be the most ideological court in the country. When the oil industry’s allies in Congress wanted to protect the industry from drilling lawsuits, they passed a bill trying to force those lawsuits into the reliably industry-friendly Fifth Circuit. When a high school cheerleader sued her school district after it made her cheer for her alleged rapist, the Fifth Circuit ordered the alleged rape victim to pay more than $40,000. When one of the court’s few progressives asked a series of probing questions to a prosecutor during a court hearing, Fifth Circuit Chief Judge Edith Jones yelled at him to “shut up” and asked him if he would like to leave the courtroom. Earlier today, however, the Fifth Circuit left the realm of mere ideology and leaped over the line into partisanship.
[W]hen 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. . . . 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.”
After argument, the Republican panel then ordered the attorney to produce a three page, single-spaced letter explaining that courts do have the power to strike down federal laws.
Let’s be clear what’s going on here. Yesterday, President Obama made a statement that can plausibly be read either as saying that it would be unprecedented for the Supreme Court to strike down any law enacted by democratically elected officials, or that the Affordable Care Act was both enacted by democratically elected officials and that it would also be unprecedented for the Court to strike it down.
Today, President Obama make it clear that he intended the second meaning, and he went into more detail about just what he believes would be “unprecedented” about striking down his signature law. As the president explained, “[w]e have not seen a court overturn a law that was passed by Congress on an economic issue like health care” during the modern constitutional era. And, lest their be any doubt, President Obama is unquestionably right. The Supreme Court has only struck down two laws as beyond Congress’ power to regulate commerce in the last 75 years, and both of those cases involved laws that were completely non-commercial in nature.
The Republicans on the Fifth Circuit panel heard President Obama’s original statement, however, and they did not hear two plausible meanings. They did not consider the possibility that President Obama might have misspoke. And they did not wait for him to elaborate on his statement today in a way that both clarifies his meaning and removes any suggestion that the president’s views are not 100 percent accurate. Instead, they saw an opportunity to embarrass the president by forcing a fairly junior attorney in the Department of Justice to write a letter that might then be used to embarrass the president politically.
This is not how judges behave. This is how politicians behave. If Judge Smith and his co-ideologues cannot refrain from such purely political tantrums, they should resign their seats and run for office as Republicans.
The Wall Street Journal has a transcript of Judge Smith’s remarks. They are even more overreaching and partisan than previous reports suggest:
Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?
Kaersvang: Yes, your honor. Of course, there would need to be a severability analysis, but yes.
Smith: I’m referring to statements by the president in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress.
That has 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. And that’s not a small matter. So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.
Kaersvang: Marbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no –
Smith: I would like to have from you by noon on Thursday…a letter stating what is the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.
Needless to say, the only possible reason why Smith could specifically require that the letter make “specific reference to the president’s statements” is because this Republican judge believes that it will force DOJ to produce a document that will embarrass President Obama.