A constitutional food fight

Justice may be blind but it’s got ears.

Today’s big legal story is a group of Appeals Court judges who are ticked off at President Obama for his remarks Monday about the possibility the Supreme Court will strike down his health care law.

Yesterday, an appeals court hearing a health care coverage case, proved that while the branches of government are separate, one can still hit the other in a food fight.

As Lyle Denniston at SCOTUSblog tells it:

At Tuesday’s hearing, Judge Smith, according to CBS News, said the President’s suggestion that it would be unprecedented for “unelected judges” to strike down a federal law that had won passage in Congress was “not a small matter.” He told government lawyer Dana Lydia Kaersvang: “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. What is the authority of the federal courts in this regard in terms of judicial review?”


Today, the Justice Department lawyer is trying to figure out how to write a letter that, basically, says “my boss doesn’t know what he’s talking about.”

Above The Law calls it a “benchslap.”

Where do I come down on this? I confess that I’m of two minds. On the one hand, in support of the benchslap, I did get a chuckle out of this (somewhat bizarre) homework assignment. On a more serious note, to the extent that some members of the public might have been misled by President Obama’s statements, there was nothing wrong with Judge Smith availing himself of this “teachable moment,” to remind the public that federal judges not only have the right, but the duty, to strike down laws that are inconsistent with the Constitution.

On the other hand, President Obama’s original remarks amounted to silly political posturing, and perhaps they should have been ignored. It’s not shocking that the president made such comments in the first place; the executive is, after all, an icky political branch, and we are in the middle of an election year. But isn’t it beneath the dignity of life-tenured Article III deities to dirty their gavel-wielding hands with such ridiculousness? Should Judge Smith have simply ignored the president’s ill-considered comments?

  • Drewferd

    Shouldn’t a “law professor” know about the 200+ yeasr of judicial review?

  • The Founders were counting on each branch of government to jealously guard their powers, and I guess this incident goes to show that they still do.

  • MikeB

    Maybe the judge should type a letter, single spaced and no less than 3 pages, about how judges look at what is said at press conferences by politicians and how those remarks impact judicial rulings. What new sources do you rely on? How sensitive are judges about criticisms or legal analysis or responses to rulings? Which one of your feelings was hurt by this?

    Actually, Judge Smith feeds a stereotype of prickly judges ruling from emotion rather than the facts at hand, that they are indeed willing participants in the media driven political polarized cocoon. Not a great day for judicial temperament.

  • Jim Shapiro

    Imagine my shock when I found that Judge Smith was from Texas.

    Judges are in essence lawyers in gowns, only they’re more arrogant.

  • Jim Shapiro said: “Judges are in essence lawyers in gowns, only they’re more arrogant.”

    Does that include when they make decisions with which you agree?

  • Jim Shapiro

    Drae – Heavens no. Then they’re deep-thinking, stately jurists. 🙂

  • Jim – naturally.

  • kennedy

    I expect posturing from politicians, not from judges. Being ticked off by the President’s statements is not a justification to hijack courtroom proceedings. This judge took his attention away from the case he was presiding over.

    Yes, President Obama was wrong. The court has the right and responsibility to overturn laws and rulings that are unconstitutional. However, this judge is not on the Supreme Court. He should not be ruling on or arguing their cases or sparring with the President. He should focus on his own court room.