At a press conference on Monday, President Obama argued in support of the Affordable Care Act's constitutionality, and said, "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."
The phrasing may have been incomplete, but the point was hardly controversial. As Obama clarified yesterday, in cases like these, the justices haven't overturned federal laws since before the New Deal. "The point I was making," he added, "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."
That happens to be true -- the Supreme Court has not struck down a central provision of a landmark federal statute since the 1930s. But it didn't stop a Reagan-appointed judge on the U.S. Court of Appeals for the 5th Circuit from throwing a tantrum from the bench yesterday.
A federal judge on Tuesday expressed concern over President Obama's comments on the Supreme Court's consideration of the health-care law and demanded a letter explaining whether Attorney General Eric H. Holder Jr. believes federal judges have the authority to strike down federal laws.
Judge Jerry Smith, a Republican appointee on the U.S. Court of Appeals for the 5th Circuit, was part of a three-judge panel hearing arguments in a lawsuit over the Affordable Care Act when he issued his unusual demand, saying the Justice Department must submit the three-page, single-spaced letter by noon Thursday, according to a lawyer who was in the courtroom.
This is not only ridiculous, it's also an embarrassment to the federal judiciary at a time when the institution can least afford another setback in its credibility.
No matter what you think of the president or this case, when powerful judges start acting like childish politicians, it's cause for genuine concern about the integrity of our courts.
Yesterday's tantrum, even by conservative standards, was pathetic. Judge Smith saw something on the news, decided to question whether the president accepts the principle of judicial review, and then assigned homework to a Justice Department attorney -- complete with instructions on page length and spacing, as if the 5th Circuit Court of Appeals is now a 9th grade English class.
Is it too much to ask that the right take a moment to grow up?
Even Orin Kerr, a conservative legal scholar, described Smith's antics as "highly inappropriate," adding that federal judges "should not be going outside the record to come up with assignments to litigants based on press releases by politicians in such politically charged matters. It just makes the judges look like political actors themselves, which doesn't help anyone."
The larger concern, especially after last week's oral arguments at the Supreme Court, is that Americans can no longer have any confidence that judges, especially on the right, are guided by anything other than partisan and ideological goals. Our system of government relies heavily on an independent judiciary, but some judges appear willing, even eager, to blur the line between their duties and political activism. When Americans start to see conservative judges as Republicans, rather than just Republican appointees, the integrity of the courts suffers in immeasurable ways.
This just isn't healthy for our democracy. Here's hoping Judge Smith reflects on his tantrum and realizes he made a mistake. The federal bench is no place for partisan grandstanding.
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At least they didn't make Obama write, "Nothing is achieved by unnecessary talking except unnecessary work," a hundred times on the chalk board.
They're saving that for September
There is a slippery slope that begins atop unbecoming and bottoms out at untoward!
Conservatives in our beloved nation are skiing this slope at brake-neck speed! -Kevo
When Boss tell his sheeple to Baa, Baa, Baa and march they Baa, Baa, Baa and march.
Conservatives started behaving like fools when McCain lost and they still haven't stopped.
And "activist judges" started becoming more emboldened with "injustice".....
They started behaving like fools long before that.
9-9-9 has been replaced with 5-4. The Supreme Court should be strip-searched for Koch brothers' fingerprints.
Consertive justices from the SCOTUS on down are'nt intrested if something is constitutional or not,it's what is the party line.I saw the ruling on strip searches and could not be believe my eyes.Police can strip search you for speeding?Can they also strip search you right at the scene to make an example of you? This ruling just screams abuse.Cops are'nt all nice guy's.
I'd agree. And the fantastic ego bloat that judges* seem to suffer in this country, their freedom & willingness to abuse their powers, and the general lack of restraint or oversight exercised upon them, makes something of a mockery of the whole concept of democracy in the USA.
*I decline to call them justices, given the outcomes resulting from the legal system they preside over 'This isnt a Court of Justice, boy, this is a Court of LAW'
I started worrying about judges when I found out JUDGE Jeff Sessions had been one. Honestly??? This SO pissed me off when I read it. First off, the judge didn't even have what the President said CORRECT. So clearly, he received talking points from the GOP. The President SAID " "I 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 somehow
overturn a duly constituted and passed law."
Secondly, this judge seems to
believe in his OWN hype that somehow he is above criticism for his actions. I
am sick of the lying and the 'House of Lords' mentality that the GOP has. You
want to see a President RAIL at you? Go watch FDR. He KNEW you were
fools.
For a good standard of comparison, SteveM's post today at Balloon Juice is a must-read.
Along with other goodies, he quotes Reagan comparing a Supreme Court ruling with Watergate and a Congressional bribery scandal, and a young Reagan-era Justice Department lawyer named John Roberts advocating stripping the Federal courts of jurisdiction in areas where they weren't ruling the 'right' way.
http://www.balloon-juice.com/2012/04/04/but-saint-reagan-was-the-nicest-man-not-like-that-vicious-thug-obama
In other words, STFU, stupid Republicans.
Cherry picking the Bible was not enough for the GOP. Now they want to cherry pick the constitution, as well as economic history for the last 40 years.
The courts have no integrity, they haven't for at least the past 10 years. Our Federal and State Courts are filled with political hacks, not serious jurists, when political corporations have a litmus test for appointment to the bench, you can count on those appointed being the bottom of the barrel, and that is what we have. An illegitimate Supreme Court is one of the proximate causes of the American Civil War, the capture of both political parties by the ruling aristocracy (southern planters) and viewing every attempt to solve a problem as a cause for war was another reason that war happened, and lets remember that the power elite at that time got hundreds of thousands of poor white folks to die defending their wealth. It seems to be happening all over again, and this time Roberts, Kennedy, Scalia, Thomas and Alito will be directly responsible for the violence since they have deliberately destroyed what little credibility and legitimacy the courts have had. We have two dysfunctional branches of government today, simply because one political corporation is too damned racist and greedy to act as citizens.
How true. That branch (The Looters) keeps insisting that it is right, moral and proper to forcibly take from the productive members of society (The Makers) in order to placate the unproductive members (The Takers). When folks finally realize that Liberalsm is truly a mental disorder and advocates theft under color of law, we can finally begin to heal our great nation.
BTW...President Obama isn't near as smart as his supporters purport him to be. See below:
http://mike-1499840Mike-1499840.newsvine.com/_news/2012/04/03/11000159-president-obama-proves-he-was-never-a-constitutional-law-professor
Is this judge stupid, as well as partisan?
Obviously, if you suggest someone shouldn't do something, you believe they have the power to do it. It makes no sense to tell people not to do things they can't do in the first place. No one says "Hey, you know, I don't think it would be a good idea for you to sprout wings and fly to Tacoma."
In English, we have a clear distinction between the concepts of "could" and "should". Whether or not federal judges have the authority to strike down laws has no real bearing on whether or not a particular set of judges should strike down a particular law.
Pathetic.
I know a guy who clerked for Jerry Smith in the early '90s. Smith is a Federalist (as is my friend). When Jerry Smith asks Newt Gingrich what he means by his threats to defund the 9th Circuit, I'll take this as an apolitical act. This is the Jump the Shark moment for Conservatives.
Powers Taken from Powers Granted, with Interest Charged
http://en.wikipedia.org/wiki/Marbury_v._Madison
This 1803 action selectively invalidated a 1789 law, and in effect set for the Supreme Court the power of judicial review, to review the ability of lawmakers to make laws. The Constitution is design to resolve in favor of the constitution any conflict between the constitution and laws passed by the legislature. Jefferson disagreed to the effect if the Constitution created the Supreme Court to interpret in favor of the Constitution, then any law could set aside for any reason just by using its interpretive power after creating own power of judicial review.
Just be clear, the case, its players, its source, and the ruling where not much more than a vehicle to self-award powers. Of course this is the case, and of course it a definitive ruling, and it is also, a sleeping monster. The monster is always threatening to be awakening from its deep sleep whenever the Supreme Court Justices swear allegiance to up hold the Constitution over the Public Trust. This happens when money, financial incentives, ideologies, associations, human comforts are offered to the Supreme Court. It goes to explain, that appointment to a powerful position, is a perk as much as it is a prison, life service, life sentence, always in the right place to receive what is offered, goose of golden egg position.
I would not have to do much research to guess, that any government body situated at the cross roads of commerce would resist awarding power to itself just by apply this power to do so. The Supreme Court is not the only powerful body, to attempt to restrain the executive, where the executive notion has been the perennial headache to the aspiring hierarchy (power, aggressive, greedy men). Just as the Supreme Court has its own rules for self-aggrandizement so does the Senate its rules can be fashioned in any way it pleases, no need for restraint. It just as possible for the Senate to vote a rule to yield all Senatorial power to one Senate leader, who would not need much of the remaining Senators, except for body guards. Together the Senate and the Court could just rule away every law of the House and place forcing the Executive to operate the White House as a museum.
This is the fact, even if it not the US History it comparable to the loss of nearly every republic that has been created by Public Trust. One item the history of the government bodies is the fitful journey of trust, placed in powerful men, and trust in their deliberations, it all rests on trust, I can guarantee trust but only as a last resort by losing distrust.
The Public Trust, is just a pair of words, used to refer to the old notion of the power of the people, it is expressed in civil ways by such notions and one man one vote, and has recourse to pitch forks and pointed implements. Given these gentile notions, beware the wrath of the public in distrust, money offers for things that run counter to the Public Trust, the attractiveness of money, who and what it can buy, how indirect and seductive may applied, so smooth this way corruption, so skilled the path of that money, so subtle that way of reward, the price of one Ego is dear to the seller, and nothing to the buyer.
Some prominent commentators sit in the cat bird seat, sound more apologetic, sing with consummate skill, so polite don’t challenge the guest. This is success; it opens the door and brings in those confortable in expounding their views. But cannot more than the minister preaching to the selected members who so repeat, again and again the same thing they well known to have said before and before that.
In Wall Street we trust not, anything you say, and can scarcely perceive the three card Monte, played so well, how can we trust thee, interest, interest, and interest, under what card and for which interest. More need be said not.
The hedge fund interest, the campaign fund, the citizens united, bush v. gore, the attendance at fancy reports and elegant salons of moneyed power, the comfort, the smiling courtier, really is that the place of humble justice, is it the kind of place where the Public Trust is well served.
You see it as it is as it cannot be other, imagination failure, wealth and power is always suspect, is discomforting to the Public Trust.
The problem is that money does not buy Public Trust, the Senate can choose to poopoo it, the Supreme Court can choose just ignore it, the House cannot get elected without it, oh and the rich, they can buy anything, play an endless game, place money on the table and take it away.
They can buy anything, and if that thing is made by something else they can buy that too, slaves them too, lawyers they are cheaper, objects and people, groups, in the end, the end very soon, they will own everyone and everything.
I can guarantee Public Trust but only as a last resort by losing Public Distrust.
The store may be closed … but in the end she can get what she came for.
Supreme Court - Pocket Apocalypse for the Public Trust
Did I miss something? Obama claims that Obamacare passed by "a strong majority" of Congress. I recall that it passed, barely, only after a series of shabby deals with specific legislators.
The Supreme Court has the right and duty to set aside any unconstituional act of congress and has done so over a hundred times since Marbury vs. Madison in 1803.
All I can say is Thank God that the Founder's of this Nation set up our three branches of government the way they did. Not only do the Judges have the right but an obligation to question one of the branches when it makes such a ignorant, stupid or as in this case, a tyrannical statement as the President did. Hardly "throwing a tantrum", Mr. Benen, but addressing a President that needs to be reminded that he is not King, or Dictator as much a he wishes he was, but was elected to an office that shares powers, not takes over at his will.
The judge is entitled to nothing under the separation of powers doctrine. Holder is responsible to the President and not the courts. The AG should ignore the judge who has no legal basis for his demand. If the judge wants to find Holder in contempt, let him. The federal marshals are responsible for arrests and they are under the jurisdiction of Holder.
Do people just cover their ears and hear whatever they want to hear? PBO did NOT say that the court's ruling on ACA would be ignored or that the court no longer has an viability or anything else. What PBO stated was that he was highly skeptical that SCOTUS would overturn ACA based on previous legal precedent and SCOTUS (as well as federal court) rulings which have upheld the tenants ACA is based on. He then further clarified that SCOTUS has not overturned a central portion of a federal bill since 1930- thereby further justifying his skepticism that SCOTUS will strike ACA down. He did NOT say that the federal courts cannot strike ACA down or that somehow his administration would ignore the federal courts if they struck it down. All he said was that he thinks it's highly doubtful that they will.
Honestly how in the hell are people not getting his argument?! Seriously???
because they are listening to fox news, lol
And reading the WaPo.
Justice must not only be done but also appear to be done. Bias is painted vividly on the walls of the fifth circuit. Judge Jerry Smith has tainted this proceeding and must exclude himself from this case. Is there a reasonable person in the jury of public opinion who can expect justice from this tribunal?
Didn't Barry Soetero teach constitutional law before becoming a Senator ... I'm surprised he is so ignorant concerning the Constitution and the powers given to the judiciary to protect the citizens of America given that he is the 4th best President ever and the smartest occupant (ever) of the White House ...
Last month, the 5th Circuit affirmed a lower decision allowing Benedictine monks to sell caskets without a funeral director's license. Statutes enacted by the state legislature were unconstitutional in that rules favoring the funeral cartel must have rational basis, which the 5th found lacking. Jindal has 90 days to appeal to SCOTUS that the will of his legislature is not subject to judicial review or censure, certainly not over such mundane niceties as due process or equal protection. How about restrain of trade acting under color of law?
Handing out economic favoritism to well connected insiders is what legislatures do. Should courts have a hand in the game? Perhaps Bobby Jindal will find himself at the blackboard.