A federal appeals court’s questioning of President Obama’s pointed remarks about Supreme Court judicial review has sparked criticism of the appeals panel as politically engaged. This week’s escalating confrontation, meanwhile, has intensified a spotlight on the role of impartial courts in a politically charged season.
On Tuesday, three Republican-appointed judges of the Fifth U.S. Circuit Court of Appeals told Justice Department lawyers to provide an explanation whether federal courts could intervene and strike down laws passed by Congress as unconstitutional. The Supreme Court’s 1803 ruling in Marbury v. Madison guaranteed that power.
The panel issued its order after one of its members had expressed concerns about Obama’s remarks warning the Supreme Court of the perils of “judicial activism;” the president later softened his rhetoric (see Gavel Grab). “I want to be sure that you are 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,” Judge Jerry Smith told a Justice Department attorney defending the new federal health care law, according to a CNN report.
While Obama was questioned by some commentators and lawmakers earlier for his remarks, there was immediate criticism of Judge Smith and the panel. Washington Post columnist Ruth Marcus commended Obama’s clarification and scorched the appeals panel:
“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 the problematic behavior is coming from the other branch, with a federal appeals court going out of it way to pick a fight with the president. Talk about judicial activism — this is a judicial temper tantrum.”
In the Atlanta Journal, Jay Bookman blogged, “By in effect ordering the president to write ‘Marbury v. Madison’ 100 times on the classroom chalkboard for all to see, Smith has turned the judiciary into an active participant in the political process, where it does not belong and where its interests can only be harmed. He has indulged himself in injudicious, dangerous grandstanding.” CNN analyst Jeffrey Toobin criticized the Fifth Circuit’s order as a “judicial hissy fit.”
CNN political analyst Ron Brownstein saw in this week’s exchanges a multi-layered confrontation with grave implications for the courts:
“I think what we are seeing here is the courts, and the confrontation between the administration and the courts, being drawn in to overall polarization that defines so much of modern political life. Every aspect of this has been extraordinary.
“Obama’s comments Monday were more pointed and sharp than a president usually directs toward the Supreme Court; the response by a Reagan-appointed judge, more pointed and sharp than you might have expected from a lifetime-tenured member of the judiciary. And you really see here how even the idea of the court as something of an island apart from the intensity of political conflict is really breaking down.”
On Thursday afternoon, Attorney General Eric Holder wrote a letter to the Fifth Circuit judges providing assurances that the Obama administration respects decisions of the courts, according to an Associated Press article.
Senate Republican Leader Mitch McConnell of Kentucky was planning to deliver a speech in his home state about President Obama’s remarks, according to a Fox News report.
These other news media commentaries and reports dealt with aspects of the unfolding story: “Obama’s Supreme Court comments off the mark,” a Los Angeles Times editorial; “Obama’s Supreme Court comments lead some to question his strategy,” a Washington Post article; “For Barack Obama, Law Professor, the Time to Lecture Is Now,” an Atlantic commentary by Andrew Cohen; “Obama’s high court row recalls previous battles,” a Reuters analysis; and “Court’s Potential to Goad Voters Turns to Democrats,” a New York Times article.