The Judicial Activism Wars

Washington – Earlier this week I chided President Obama for his remarks on the Supreme Court and the role of “unelected” judges. The president, wisely, has since chosen to clarify his statement, and express his (correct) view — that courts should be hesitant to overturn acts of Congress — in a much more appropriate way. Now there’s an example of problematic behavior coming from the judicial branch, with a federal appeals court going out of its way to pick a fight with the president. Talk about judicial activism — this is a judicial temper tantrum.

The episode began at oral arguments Tuesday before the 5th U.S. Circuit Court of Appeals in Houston. A panel of the court is hearing a challenge to part of the health care law, and as the government lawyer began her presentation, Judge Jerry Smith, a Ronald Reagan appointee, interrupted to ask about the president’s comments.

“I’m referring to statements by the president in the past few days to the effect, and I’m 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, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress,” Smith said.

“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,” he added. “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.”

It was weird enough for an appeals court to go out of its way to take judicial notice of comments that were not in the record before it. The government lawyer, Dana Lydia Kaersvang, quickly assured the court that Marbury v. Madison, the 1803 case establishing the principle of judicial review, “is the law.”

Which should have been the end of the strange interlude, but was not enough for Smith. “I would like to have from you … 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.”

Wow, why not order the president to go to the blackboard and write, 100 times, “I do believe in Marbury v. Madison”?

It is, as Chief Justice John Marshall wrote in Marbury, emphatically the province of the judiciary to say what the law is. It is emphatically not the province of the judiciary to interject itself into the political debate, which is what Smith’s outrageous, unprovoked order inevitably does. I believe fervently in the importance of life tenure, but judicial shenanigans like this are enough to make you wonder.