Thursday, April 05, 2012

The President, Judicial Review and Judge Smith

So, of course, the President's statement that it would be unprecedented for the Supreme Court to invalidate a law that was passed by a "strong" majority in Congress is wrong and, for a law professor, seems breathtakingly stupid. There are legal academics on the left who have come to be opposed to judicial review but no one would say it is unprecedented. Law students learn in about the first week of Constitutional Law that it is very precedented - that it is, in fact, one of the cornerstones of our constitutional jurisprudence. Ask any lawyer to tell you about Marbury v. Madison. It's one of the few first year cases, he or she will remember by name.

But President Obama is not breathtakingly stupid and we are reminded - constantly - that he taught constitutional law as an adjunct professor of law at Chicago. He knows that what he said is wrong.

The current White House spin is that he meant to say - in fact did say - something different than the meaning of the words he chose. I don't believe that. Indeed, he could have said that it would be rare (it wouldn't be unprecedented) for the Court to invalidate a Congressional enactment predicated on the Commerce power.

But a nuanced statement like that would not have served his purpose. It would have invited an argument about legal technicalities and not about the legitimacy of the Court. It would have been dismissed by most people as an argument between experts and that would not do.

Obama may be trying to influence the Court. It would be a big thing to strike down Obamacare - not because it would be unprecedented or even unpopular, but because it place the Court and President in conflict on a major national issue. That happens but it is always uncomfortable.

In making his statement, the President signalled that he intended to exacerbate such a conflict. He intends to go after the Court and make it an issue in his reelection campaign. While some liberal commentators, while forced to admit that the statement itself was nonsense, have said that it is not much of an attack, it is also the case that the Court has not yet ruled. This is a signal of what is to come and was intended to be read as a signal of what it to come.

So I have some sympathy for Judge Jerry Smith who, in the course of proceedings on a different challenge to the health care law, asked the DOJ to clarify its position on judicial review. I understand why he felt compelled to do it.

But, in the end, I think he ought not to have done it. The President of the United States was engaged in silly political posturing for which he has been, and richly deserves to be, slapped down.

I think it would be better for federal judges to stick to knitting and ignore the antics of politicians - even the President of the United States.  What he said was wrong. We all know it's wrong. Let's attend to the law as it is.


George Mitchell said...

Agree on Smith. The facts were and are clear without him needing to engage DOJ.

Obama's venue for his remarks — a Rose Garden event for two visiting heads of state — makes it clear that his comments were no slip of the tongue. He took his first public chance since returning from Asia to take a shot at the Court. He has decided this is a good issue for his base, something confirmed by Maureen Dowd and Paul Krugman in the subsequent days.

Anonymous said...

Obama clearly didn't intend to say that the Supreme Court has never stricken down a federal statute. He misspoke. For the Supreme Court to strike down a major piece of federal economic legislation like this one would be unprecedented in modern times.

Jerry Smith, on the other hand, did what he did intentionally. He comes off as a petty tyrant, ordering a three-page, single-spaced essay. The guy's an embarrassment to the federal judiciary. He's not judicious.

Presidents have First Amendment rights, too, and for judges to punish their free speech in this way is beyond the pale. You can imagine the hoo-ha if a judge on the Ninth Circuit had attempted in this way to dress down Newt Gingrich or any number of other Republican Congressional leaders or their counsel for any of the comments they've made that have been highly disrespectful to federal judges.

George Mitchell said...

Trying to understand Obama's strategy, he must see the case before the Court as lost. Given the timing, his comments make no sense otherwise. He's framing the issue in the context of the campaign. Is there any precedent, to borrow a phrase, for an incumbent President to seek a second term by running against the other two branches instead of running on his record? What's scary is it might work.

Rick Esenberg said...

Anon 4:29

If you are offended by the limitation of the page limit and spacing, you are not a lawyer. Federal courts routinely issue far more precise directions for the submissions that they will and will not receive.

I don't think the President misspoke. If you really understand constitutional law, those words would never leave your mouth. I am going to credit him with that knowledge. He's earned it. He didn't make a mistake.

Anonymous said...

I am offended by the page prescription and spacing, and I'm a lawyer. It wasn't a page limit. It was a mandate that DOJ file a letter which shall be at least three pages long, single-spaced. I am aware of no court that prescribes rules that require minimum brief lengths. Are you? This was like Judge Smith saying to the president of the U.S., write on the chalkboard, 100 times, Marbury v. Madison is the law of the land.

It is not the job of judges to slap down politicians for political statements. In fact, I suspect that violates a number of canons of judicial ethics. You were right in saying Smith shouldn't have done what he did. He is an embarrassment to the federal judiciary.

Anonymous said...

Yup. Code of Conduct for Federal Judges, 3(A)(1) ("should not be swayed by partisan interests"); 3(a)(3) (should be patient, dignified, respectful, and courteous); 3(A)(4) ((should accord to every person who has a legal interest in a proceeding the full right to be heard according to law); 2(A) (should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary); and 3(C)(1).

Smith should resign.

Rick Esenberg said...

Anon 10:28

You are not a lawyer or, if you are, you either don't file many briefs. All sorts of courts impose page limits and sundry other requirements. If, in the future, you ever practice before the Wisconsin Supreme Court or Seventh Circuit, for example, you had better check their rules before you file a brief. Be prepared to be offended.

Just yesterday, I filed a document in the Eastern District of Wisconsin that was subject to a page limit, a requirement that it may be double spaced and specifications with respect to the size and type of type face.

If you ever have to file a brief in the Seventh Circuit, you will have to comply with prescribed limits on the number of pages and words, margins, spacing, typeface and size, color for the cover, binding for the cover and more. There are very specific directions for formatting and, in particular, for the way in which subject matter jurisidiction is specified. These rules will be aggressively enforced.

Too high falutin' for you? The Circuit Court for Milwaukee County imposes limits on the length of briefs.

I'm sorry but you have no idea what you're talking about.

Rick Esenberg said...

Stirke "either" from the first sentence of the last comment.

Anonymous said...

Professor Esenberg: You don't get it. Of course many courts have page limits. Cite me one court that commands that briefs be a minimum length. That's what Judge Smith ordered, that DOJ file a letter that would be a minimum of three pages, single spaced. Not three pages maximum. Minimum three pages. Do you understand the difference? Can you cite me any court that requires a minimum brief length?

Anonymous said...

And don't tell me that a page limit is the same thing as a minimum number of pages. This was a punishment. You shall write an essay and it shall be at least three pages long, single spaced. You will tell me why judges are the bosses. You will write "Marbury v. Madison is the law of the land" on the chalkboard one hundred times.

Anonymous said...

Anony 9:45 a.m./9:51 a.m.

I believe the professor made an error in posting this statement*** in response to your statements. This post is found at a different thread--Compulsory Compassion And Freedom. Perhaps in his haste he thought he was answering your inquiry but failed to realize that he was on the wrong thread. I am only speculating.

The Professor wrote...***"What's the difference? Given the many and varied requirements that courts impose on lawyers saying that I want a three page singled spaced speech doesn't strike me as offensive. My own view, again, is that the Court should have ignored the President because DOJ hadn't raised the question of judicial review. They aren't defending - or advancing - the President's position so why give it the time of day? But to get up in arms about the details seems beside the point."

Professor, I am sure you have had your students write papers and perhaps one of the requirements is a MINIMUM page amount. I would suspect that if a student failed to meet that criteria, there would be a consequence. However, I do imagine that some students are able to craft succinct responses, so maybe you would not deduct points from their score because you recognize that their position was well-written.

I would imagine if the DOJ failed to meet the criteria set forth by Judge Smith, it would be within the purview for him to declare the DOJ in contempt. So, the details do matter.

Indeed, I would be interested also if courts in the past have required lawyers to submit a letter using the criteria set forth by Judge Smith.

Now, professor, the action taken by Judge Smith is NOT about being "offensive", but rather it was "necessary". You believe he should have refrained from this conduct, yet you understand why he did it.
Your position is called "hedging your bets".

Anonymous said...

Conservatives when a Court strikes down a law passed that they support:

"Activism! Let the people decide! Outrage! Hang the justices! Communism! We're all going to die! ARRRGGHHH!!"

Conservatives when a Court strikes down/threatens to strike down a law passed they don't support:

"Dude! Lay off the justices! Have some respect!"

And vice versa.

Amuse me: explain how I am wrong.