I’m sure you’ve probably heard about this by now, but it’s a pretty remarkable story: a Fifth Circuit Court of Appeals Judge with the silent acquiescence of two colleague on a three-judge panel dealing with a secondary challenge to the constititutionality of the Affordable Care Act freaked out yesterday and demanded that the Department of Justice file an immediate statement repudiating what the judge chose to interpret as the president’s defiance of the power of judicial review. Here is CBS’ Jan Crawford’s updated report after reviewing audio of the incident:
In the hearing, Judge [Jerry] Smith says the president’s comments suggesting courts lack power to set aside federal laws “have troubled a number of people” and that the suggestion “is not a small matter.”
The bottom line from Smith: A three-page letter with specifics. He asked DOJ to discuss “judicial review, as it relates to the specific statements of the president, in regard to Obamacare and to the authority of the federal courts to review that legislation.”
“I would like to have from you by noon on Thursday — that’s about 48 hours from now — 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,” Smith said. “What is the authority is of the federal courts in this regard in terms of judicial review?”
Smith made his intentions clear minutes after the DOJ attorney began her argument, jumping in to ask: “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 replies yes, and Smith continues: “I’m referring to statements by the president in past few days to the effect, and sure you’ve heard about them, that it is somehow inappropriate for what he termed ‘unelected’ judges to strike acts of Congress that have enjoyed — he was referring to, of course, Obamacare — to what he termed broad consensus in majorities in both houses of Congress.”
In asking for the letter, Smith said: “I want to be sure 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.”
Smith, who got his lifetime appointment from Ronald Reagan, is a conservative judge on a famously conservative circuit, notes ThinkProgress’ Ian Millhiser:
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
But Smith’s outburst of wingnuttery was pretty remarkable even by those standards. Orrin Kerr, a contributor to the generally conservative Volokh Conspiracy legal blog, initially called Smith’s gesture “extraordinarily embarassing to the federal judiciary,” and after listening to the audio backed down on that statement only to a small extent:
[T]he tone of the questions was quite different from what I was expecting based on the story. It came off to me as earnest and genuine, not just an effort to score a cheap political point. With that said, the order still strikes me as highly inappropriate: The DOJ lawyer was quite clear as to DOJ’s position, and lower court judges deciding cases based on briefing and argument 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.
For the most part, though, Smith is enjoying high-fives rather than rebukes from the conservative commentariat. And it’s all a real through-the-looking-glass moment for those of us who remember decades of conservative demonization of the federal courts and the arrogance of “unelected judges” thrwarting the popular will on civil rights, civil liberties, abortion, gay rights, and so on and so forth. Not that very long ago, the late Richard John Neuhaus, considered one of a small handful of the most important conservative thinkers in America, proposed what amounted to a right of revolution against the illegitimate “regime” of federal judges. Not every conservative agreed, but he received a respectful hearing for this extremist position.
But all previous positions, it appears, and all previous standards of appropriate behavior as well, must be abandoned when it comes to the overriding task of opposing Barack Obama. That’s fitting, given that the underlying issue here is Obama’s adoption of the individual health insurance purchasing mandate originally crafted by conservatives.
A lawyer friend of Kevin Drum’s offered him this immediate reaction to the Smith incident:
This is meant to embarrass the President. Full stop. Jesus, this is getting scary. It just seems like all out partisan war brought by the Republicans from all corners of the Government. They want to push it as far as they can. And then further. It’s incredibly destructive.
“They want to push it as far as they can” is a comment applicable to the conservative movement generally in its assault on the conventions of American law and government as generally accepted towards the end of the twentieth century. It’s just a little startling to hear its battle-cries echoed from the federal bench.