At a press conference on Monday, President Obama argued in support of the Affordable Care Act's constitutionality, and said, "I'm confident that the Supreme Court will 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."
The phrasing may have been incomplete, but the point was hardly controversial. As Obama clarified yesterday, in cases like these, the justices haven't overturned federal laws since before the New Deal. "The point I was making," he added, "is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it's precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress."
That happens to be true -- the Supreme Court has not struck down a central provision of a landmark federal statute since the 1930s. But it didn't stop a Reagan-appointed judge on the U.S. Court of Appeals for the 5th Circuit from throwing a tantrum from the bench yesterday.
A federal judge on Tuesday expressed concern over President Obama's comments on the Supreme Court's consideration of the health-care law and demanded a letter explaining whether Attorney General Eric H. Holder Jr. believes federal judges have the authority to strike down federal laws.Judge Jerry Smith, a Republican appointee on the U.S. Court of Appeals for the 5th Circuit, was part of a three-judge panel hearing arguments in a lawsuit over the Affordable Care Act when he issued his unusual demand, saying the Justice Department must submit the three-page, single-spaced letter by noon Thursday, according to a lawyer who was in the courtroom.
This is not only ridiculous, it's also an embarrassment to the federal judiciary at a time when the institution can least afford another setback in its credibility.
No matter what you think of the president or this case, when powerful judges start acting like childish politicians, it's cause for genuine concern about the integrity of our courts.
Yesterday's tantrum, even by conservative standards, was pathetic. Judge Smith saw something on the news, decided to question whether the president accepts the principle of judicial review, and then assigned homework to a Justice Department attorney -- complete with instructions on page length and spacing, as if the 5th Circuit Court of Appeals is now a 9th grade English class.
Is it too much to ask that the right take a moment to grow up?
Even Orin Kerr, a conservative legal scholar, described Smith's antics as "highly inappropriate," adding that federal judges "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."
The larger concern, especially after last week's oral arguments at the Supreme Court, is that Americans can no longer have any confidence that judges, especially on the right, are guided by anything other than partisan and ideological goals. Our system of government relies heavily on an independent judiciary, but some judges appear willing, even eager, to blur the line between their duties and political activism. When Americans start to see conservative judges as Republicans, rather than just Republican appointees, the integrity of the courts suffers in immeasurable ways.
This just isn't healthy for our democracy. Here's hoping Judge Smith reflects on his tantrum and realizes he made a mistake. The federal bench is no place for partisan grandstanding.