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 strike down a federal law, according to a lawyer who was in the courtroom.
The order, by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, appears to be in direct response to the president's comments yesterday about the Supreme Court's review of the health care law. Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would 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."
Many people have pointed out that a 219-212 vote is not, according to the basic principles of math, a "strong majority." It's more like "close to a razor-thin margin of victory." But many people have also pointed out that courts overturning laws hasn't been unprecedented since the very early 19th century.
Apparently the judges had heard about President Obama's rather ill-considered remarks:
The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.
The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.
Smith then became "very stern," the source said, telling the lawyers arguing the case it was not clear to "many of us" whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick--both Republican appointees--remained silent, the source said.
It's not clear to us either! Thanks for asking, 5th Circuit Court of Appeals!
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Comments:
Jul '11
Re: Court Asks Obama To Clarify His Attacks On Judiciary
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
3 minutes ago
Wow, that article is really disgusting. It's important to note that:
People like this guy dominate academia. · 33 minutes ago
Since the liberal justices voted 4-5 on DC gun rights, and those four voted against the constitution, we can reasonably expect the 4 liberals to vote against the constitution here. Could we consider impeachment of them?
Nov '11
Re: Court Asks Obama To Clarify His Attacks On Judiciary
James Of England
Astonishing:
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 . . . permanently won the argument for the Federalists. Not unimportant.
I do so love it when we agree!
Apr '11
Re: Court Asks Obama To Clarify His Attacks On Judiciary
Paul A. Rahe: 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 whyMarbury v. Madison is almost never cited before the 1880s.
The notion that it constituted a landmark is a figment of the law school imagination. · 2 hours ago
For what it's worth, I sort of agree with this, but it's obviously far too strongly stated, perhaps due to the word limit, and Professor Rahe and I are not in the majority on this, even in its weaker form. Marbury was one of a series of cases in which the Court set out its authority as against other courts and other political institutions. It was recognized as the paradigmatic case on judicial review in Joseph Story's Commentaries on the Constitution of the United States (1833).
Continued.
Aug '10
Re: Court Asks Obama To Clarify His Attacks On Judiciary
Roberto:
Um, if they think they can muster the votes for a constitutional amendment, why not just amend the constitution to allow for an individual mandate? Weirdos.
Oct '10
Re: Court Asks Obama To Clarify His Attacks On Judiciary
I hadn't considered this, but Yes.
I can easily imagine his autobiography as a multi-volume defense of his every moment in office. Packaged and marketed more ways than The Lord of the Rings.
May '10
Re: Court Asks Obama To Clarify His Attacks On Judiciary
Can you imagine the reaction if Bush or Palin had said something like that?
I must have missed his outrage when "unelected" judges overturned a bunch of popularly elected laws in California in recent years, including a definition of marriage.
Apr '11
Re: Court Asks Obama To Clarify His Attacks On Judiciary
Some other cases that shed light on the place include United States v. The William (1808), which read the provision narrowly, and did not exercise judicial review, but felt the need to explain its discretion, and says in a footnote:
Nougues v. Douglass, 7 Cal. 65, 80 (Ca. 1857). I give the cite as I can't find a free copy of this. The case is a tax case, and affirms initially the caution of the court in dealing with a political question, but then goes ahead and issues a writ of mandamus based on its jurisdiction over the specific officer's action, with authority stemming from Madison. "This proposition was determined in the case of Marbury v. Madison, by the Supreme Court of the United States, as early as 1803, and has ever since been regarded as the settled law of the country.”
Jan '11
Re: Court Asks Obama To Clarify His Attacks On Judiciary
The police/Rush/Catholics/Court acted stupidly. Now let's have a beer summit.
Aug '10
Re: Court Asks Obama To Clarify His Attacks On Judiciary
Oh, I am having my own, right this moment.
Apr '11
Re: Court Asks Obama To Clarify His Attacks On Judiciary
Much of the reason that there aren't a lot of cites to Marbury for its first 60 years is because there aren't a lot of cases where striking down a Federal law is an issue. The courts are timid, particularly under Jackson and his ilk, for a long time. It gets discussed in Congress, though, and other contexts, and often with explicit recognition of its significance.
Johnson et al. v. United States, (1830), refers to it as "the great case of Marbury v. Madison". Rep. James Hale in 1860 refers to the "famous case" of Marbury. Dawson v. Shaver and Another, 1 Blackf. 204 (Ind. 1822) uses it to claim, in pretty expansive language, “the duty of the Court is imperative, and its authority is unquestionable”.
All this does not demonstrate that the modern "Marbury" is the same "Marbury" that Marshall decided, but looking at the "likes", I thought it was worth clarifying the limits to claims of insignificance. There are a lot more cases and cites on both sides, but I should probably stop hijacking this thread on this point.
Sep '10
Re: Court Asks Obama To Clarify His Attacks On Judiciary
Clinton on Marbury v Madison How the Court Became Supreme
Mar '11
Re: Court Asks Obama To Clarify His Attacks On Judiciary
No, they probably think he should be able to re-write it as he sees fit.
Re: Court Asks Obama To Clarify His Attacks On Judiciary
Mothership -- "David R. Dow is the Cullen Professor at the University of Houston Law Center....". And also the author of a book called "America's Prophets," in which he praises judicial activism; indeed, he says that Jesus was a "judicial activist.". The idea that Dow is calling for impeachment of justices who vote to overturn a law is the very height of hypocrisy.
Mar '11
Re: Court Asks Obama To Clarify His Attacks On Judiciary
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. · 3 hours ago
You think so? Is this simply an example of us being hoisted by our own petard as it were?
Apr '11
Re: Court Asks Obama To Clarify His Attacks On Judiciary
Roberto
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. · 3 hours ago
You think so? Is this simply an example of us being hoisted by our own petard as it were? · 9 minutes ago
Who is this "our", kemo sabe? There's a reason that almost the entire conservative legal field threw up their hands in horror at Newt's utterly stupid pontificating on the judiciary. I don't agree with Rick's decision to introduce contraception to the political debate back in October, or to place Online Pornography as his #1 issue on his website, as he did until February, but Santorum's never come out with anything quite so toxic to America's civic virtue as Newt did on this occasion. Santorum's ideas are sometimes good, sometimes bad, sometimes excellent. Newt adds a fourth category of indescribably terrible.
Apr '11
Re: Court Asks Obama To Clarify His Attacks On Judiciary
It's worth noting that Clinton (Robert Lowry Clinton) was the first guy to make the claim that Marbury wasn't the landmark case people though, back in 1989, and is still probably the most significant authority to take this view (although he's moderated a little since '89).
Mar '11
Re: Court Asks Obama To Clarify His Attacks On Judiciary
James Of England
Roberto
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. · 3 hours ago
You think so? Is this simply an example of us being hoisted by our own petard as it were?
Who is this "our", kemo sabe? There's a reason that almost the entire conservative legal field threw up their hands in horror at Newt's utterly stupid pontificating on the judiciary. I don't agree with Rick's decision to introduce contraception to the political debate back in October, or to place Online Pornography as his #1 issue on his website, as he did until February, but Santorum's never come out with anything quite so toxic to America's civic virtue as Newt did on this occasion.
Thanks for writing my response for me, James.
Regularly impeaching judges (or threatening to do so) is wrong regardless of who wants to do it. For this issue alone, Republicans should have put Gingrich out to pasture.
Edited on April 4, 2012 at 5:19amNov '11
Re: Court Asks Obama To Clarify His Attacks On Judiciary
Roberto
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. · 3 hours ago
You think so? Is this simply an example of us being hoisted by our own petard as it were? · 1 hour ago
As might be expected, Gingrich has a white paper about this topic. Any of you lawyers want to read it? Or has this already been discussed previously?
Nov '11
Re: Court Asks Obama To Clarify His Attacks On Judiciary
It's interesting that the white paper speaks somewhat approvingly of FDR's court-packing plan.
Nov '11
Re: Court Asks Obama To Clarify His Attacks On Judiciary
Mothership_Greg
Roberto
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.
You think so? Is this simply an example of us being hoisted by our own petard as it were?
As might be expected, Gingrich has a white paper about this topic. Any of you lawyers want to read it? Or has this already been discussed previously?
Yes, there has been at least some discussion about this--back when Gingrich was more a factor in the GOP race and was emphasizing his intention to take on the courts. I generally agreed with Gingrich's honest open reasoned principled schema and definitely do disagree with the DavidDowBarackObama mobism, thugery, and fabrication. Both Gingrich and Obama want to take on the courts, but for different reasons and in different ways.
However, James of England and Mendel have another opinion.