Court Asks Obama To Clarify His Attacks On Judiciary

Well this is just great. Jan Crawford at CBS News reports:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strik…

  1. The Great Adventure!

    Well, that certainly brightens my day some.  I’ve been in a state of frothing astonishment over The Great Narcissist’s remarks of the past couple of days.

  2. Paul A. Rahe
    C

    For the record, Marbury v. Madison was not a landmark case, and it did not establish the principle of judicial review. That principle was part and parcel of the Constitution from the beginning. The debates in the Constitutional Convention indicate that the participants took it for granted from the outset, and it had a history in state courts before that. It was the common sense of the matter — which explains why Marbury v. Madison is almost never cited before the 1880s.

    The notion that it constituted a landmark is a figment of the law school imagination.

  3. Lance

    I think he is simply following the same strategy that welcomed a pre-election review by the courts.  Namely, he is hedging his bet that he can use a court’s overturning his premier accomplishment in office as a campain issue.  He can charge that is was Republican appointed Justices single handedly revoked a new right bestowed upon the people, and continue a narrative began and believed by the Left going back to Bush v. Gore.  

    And if he happens to lose in November, his angst with the Court will be the charge that fuels his memoirs, lectures and bank accounts.  It will be the narrative presented to the throngs of believers who will always long for what he could have done if he wasnt’t interupted by THEM.  His rhetoric will swing full circle back to the lofty heights of the 2008 campaign.  In truth his legacy will be spared the program’s eventual collapse of the program because it will never have had the chance to fail.  It will remain glorious could-have-been, were it not for those meddling justices.  He will return to the Greek columns and dress his straw men in robes of black.

  4. doc molloy

    The razor thin edge just got sharper and someone stuck his neck out too far..

  5. Fricosis Guy

    I bet the President wishes he had gone for an old school Enabling Act first.

  6. Severely Ltd.

    Is anyone else out there thinking that we’re being showered with a wealth of material to use against  the Democrats this election? Would an issue like this be too esoteric as a campaign ad?

    Also see this latest, posted by John Marzan. Yeah, I know, don’t get too cocky, but when good fortune comes your way why not enjoy it?

  7. Pseudodionysius

    assuming he is not an idiot

    Mr. President, that’s a very large hypothetical can opener you’re hiding in your pocket. Are you looking to can someone or are you just happy to see me? The question of your intelligence could be easily established by referring to your extensive publication record on the subject in esteemed law review journals (you did head a law review at one time didn’t you?), producing your marks on your college transcripts or your Hegelian master slave dialectic oriental kitsch and gothic etymolygizing senior thesis, which I’m sure is a gift to contemporary metaphysics in the tradition of Animal House and I Dream of Jeannie.

    Or perhaps you’re waiting for the American electorate to tire of the spectacle and kick your own sorry can down the road in November. 

    Happy trails.

  8. Severely Ltd.
    Lance: I think he is simply following the same strategy that welcomed a pre-election review by the courts.  Namely, he is hedging his bet that he can use a court’s overturning his premier accomplishment in office as a campain issue.  He can charge that is was Republican appointed Justices single handedly revoked a new right bestowed upon the people, and continue a narrative began and believed by the Left going back to Bush v. Gore.  

    I don’t doubt he is thinking as you say, but when even CBS can’t spin it to his advantage I wonder if he miscalculated. This seems to lean strongly in our favor.

    From the CBS story:

    Overturning a law of course would not be unprecedented — since the Supreme Court since 1803 has asserted the power to strike down laws it interprets as unconstitutional. The three-judge appellate court appears to be asking the administration to admit that basic premise — despite the president’s remarks that implied the contrary. The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

  9. Chris Johnson

    Precedence and material for the political battle are not what is at issue.

    Obama only has one real shot at re-election and he knows it.  It is time for him to get his demagogue on and rouse the rabble.  The voters he will appeal to know nothing about precedence.  I suspect the fact that he has now decided to get air time prior to the airing of the rejuvenated copy of “To Kill A Mockingbird” is far more relevant to his plans.

    The man genuinely wants trouble and is well aware that sensible people won’t be voting for him, anyway.  He is trimming his sails towards the insensible that are a likely majority.

    The only sensible reaction is to dampen the enthusiam for the insensible to show up at the polls.

    To that end, I have become resigned towards Romney.

  10. Roberto

    Hmm, apparently some of Obama’s supporters like the idea of taking on the Supreme Court:

    Impeach the Supreme Court Justices If They Overturn Health-Care Law

    …impeachment is an option for justices who undermine constitutional values. There are other options, as well. We might amend the Constitution to establish judicial term limits. Or we might increase the number of justices to dilute the influence of its current members (though FDR could tell you how that turned out). In the end, however, it is the duty of the people to protect the Constitution from the court. Social progress cannot be held hostage by five unelected men.

  11. Mendel
    Lance:  Namely, he is hedging his bet that he can use a court’s overturning his premier accomplishment in office as a campain issue.  He can charge that is was Republican appointed Justices single handedly revoked a new right bestowed upon the people, and continue a narrative began and believed by the Left going back to Bush v. Gore. 

    I agree, except he won’t frame healthcare reform as a new right, but rather as having corrected an injustice, which sounds even better to the ears of the left.

    And in general, let’s not forget that the left is just as suspicious of the Supreme Court as the right (although not for the same reasons).  Lots of Americans who have wanted healthcare reform for years will see Obama’s latest pronouncements about the Supreme Court not as Constitutional illiteracy, but speaking truth to power.

  12. Mendel
    Roberto: Hmm, apparently some of Obama’s supporters like the idea of taking on the Supreme Court:

    Impeach the Supreme Court Justices If They Overturn Health-Care Law

    Almost Gingrichian, those Democrats.

  13. Mothership_Greg
    Roberto: Hmm, apparently some of Obama’s supporters like the idea of taking on the Supreme Court:

    Impeach the Supreme Court Justices If They Overturn Health-Care Law

    …impeachment is an option for justices who undermine constitutional values. There are other options, as well. We might amend the Constitution to establish judicial term limits. Or we might increase the number of justices to dilute the influence of its current members (though FDR could tell you how that turned out). In the end, however, it is the duty of the people to protect the Constitution from the court.Social progress cannot be held hostage by five unelected men.

    3 minutes ago

    Wow, that article is really disgusting.  It’s important to note that:

    David R. Dow is the Cullen Professor at the University of Houston Law Center and the Rorschach Visiting Professor of History at Rice.

    People like this guy dominate academia.

  14. Astonishing

    It would probably be better for federal judges to avoid this sort of silly whizzing contest.

    As to Prof. Rahe’s more interesting general point:

    Paul A. Rahe:  . . .Marbury v. Madison was not a landmark case, and it did not establish the principle of judicial review. . . .

    I suppose it depends on what one means by “landmark.” At the convention there was a little, although not much, disagreement about whether the federal judiciary had the authority for judicial review, and certainly disagreement about the extent and effect of that review. 

    Marbury is instructive in several respects, e.g., especially instructive that in this first instance in which the court struck down a federal law, the court invalidated that law on the grounds that it unconstitutionally expanded judicial power. So Marbury is actually an example of judicial restraint, an example of the court declining to exercise powers the other branches wanted to bestow upon it.

    Although you would object to the word “establish,” I would still suggest that it was incredibly sly of the Marbury court to use an act of judicial restraint to “establish” its power of judicial review. The big historical takeaway is: The court gathers power by exercising restraint.

  15. Lance
    Severely Ltd.

    Lance: …

    I don’t doubt he is thinking as you say, …I wonder if he miscalculated. This seems to lean strongly in our favor.

    200 words limited the breadth of my take.  I think I had to drop the idiot reference in order to save space.   Had I elaborated more, I would have pointed out that the flaw in using it in the immediate term is that what could happen the last two weeks could happen.  Meaning a very poor showing by very unprepared advocates. 

    But I think the second part of my analysis is actually the more important one.  This man has a long life ahead of him with nothing to do but tell his story over and over again.   To do that he needs a story.  A very basic narrative to explain how and why things went the way they did.  In this light, his comments to the justices during the State of the Union speech become far more meaningful.  His comments this week, obviously untrue are in the same vein.  Since when does facts matter to him.  He is talking to a very specific audience and creating reference points for his story.

  16. KC Mulville

    Do you ever wonder if Obama’s law school students now want their money back?

  17. No Caesar

    “Many people have pointed out that a 219-212 vote is not, according to the basic principles of math, a ‘strong majority’”.

    But we all know Democrats are not very good at math. <snark>

  18. DocJay
    Pseudodionysius:assuming he is not an idiot

    Mr. President, that’s a very large hypothetical can opener you’re hiding in your pocket. Are you looking to can someone or are you just happy to see me? The question of your intelligence could be easily established by referring to your extensive publication record on the subject in esteemed law review journals (you did head a law review at one time didn’t you?), producing your marks on your college transcripts or your Hegelian master slave dialectic oriental kitsch and gothic etymolygizing senior thesis, which I’m sure is a gift to contemporary metaphysics in the tradition of Animal House and I Dream of Jeannie.

    Or perhaps you’re waiting for the American electorate to tire of the spectacle and kick your own sorry can down the road in November. 

    Happy trails. · 54 minutes ago

    I’d take his SAT’s and bet W out did him with his so so 1206 score. 

  19. James Of England
    Astonishing:

    Paul A. Rahe:  . . .Marbury v. Madison was not a landmark case, and it did not establish the principle of judicial review. . . .

    I suppose it depends on what one means by “landmark.” At the convention there was a little, although not much, disagreement about whether the federal judiciary had the authority for judicial review, and certainly disagreement about the extent and effect of that review. 

    Marburyis instructive in several respects……

    Although you would object to the word “establish,” I would still suggest that it was incredibly sly of theMarburycourt to use an act of judicial restraint to “establish” its power of judicial review. The big historical takeaway is: The court gathers power by exercising restraint. ·

    Right. There’s some debate over the issue at the convention, with the Federalists generally taking the view that judicial review should be expansive, Anti-Federalists taking the view that it probably shouldn’t be. This isn’t always how things work out; Hamilton later had some strong words against judicial supremacy, and some Anti-Federalists liked the courts, but essentially Mashall, the one time leader of the Virginia Federalist Party, permanently won the argument for the Federalists. Not unimportant.

  20. No Caesar
    Roberto: Hmm, apparently some of Obama’s supporters like the idea of taking on the Supreme Court:

    Impeach the Supreme Court Justices If They Overturn Health-Care Law

    …impeachment is an option for justices who undermine constitutional values. There are other options, as well. We might amend the Constitution to establish judicial term limits. Or we might increase the number of justices to dilute the influence of its current members (though FDR could tell you how that turned out). In the end, however, it is the duty of the people to protect the Constitution from the court.Social progress cannot be held hostage by five unelected men.

    44 minutes ago

    Oh please, please, please let them try.  They’ll broadcast their radicalism to all.  Peel away the moderates. 

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