Contrary to general impression, lawyers are timid souls. When they stand before judges they tremble at the prospect of giving offense, for an offended judge can become a dangerous adversary. There is nothing, however, to stop the rest of us from calling “foul” when a judge has gone too far.
Jerry Smith, a judge of the U.S. Court of Appeals for the Fifth Circuit in New Orleans, directed a U.S. Department of Justice lawyer to write a three-page, single-spaced letter describing the government’s position respecting judicial review., i.e., the power of federal courts to declare acts of Congress unconstitutional.
The astonished government lawyer could hardly have said, “you have to be kidding.” That is the reply that the order deserved, —there are less polite retorts that come to mind—for the power of judicial review has been unquestionable since 1803, when Chief Justice John Marshall spoke in Marbury v. Madison, and is known to all who had a decent high-school course in civics. But the poor fellow was trying to win his case.
What prompted Judge Smith to make his order was not in response to anything said by the lawyers in that case. Rather, the provocation was nothing less than a remark, an obiter dictum, of the president of the United States. President Barack Obama, in defense of the Affordable Health Care Act recently argued in the U.S. Supreme Court, remarked that it “would be an unprecedented, extraordinary step” for the court to overturn the law. The president later expanded and clarified the remark, but it was the original comment that provoked Judge Smith.
The president was quite right to say that, were the court to declare the law unconstitutional, the decision would be “extraordinary.” It is true that federal courts have declared acts of Congress unconstitutional in dozens of cases. But there are countless numbers of federal statutes that have been sustained or gone unchallenged since 1803. In that sense the term “extraordinary” is perfectly defensible.
In suggesting that a holding by the Supreme Court of unconstitutionality would be “unprecedented,” the president, once a teacher of constitutional law, was obviously not speaking ex cathedra; he knows perfectly well of Marbury and its progeny. He may have meant this: federal statutes, great and small, have been declared unconstitutional, but, with the possible exception of President Franklin D. Roosevelt’s National Industrial Recovery Act, invalidated by the Court in 1935 in Schechter Poultry Corp. v. United States, 295 U.S. 495, there has not been a judicial declaration of such consequence in 75 years.
Recent cases like United States v. Morrison (2000), declaring the Violence Against Women Act unconstitutional, and United States v. Lopez (1995), striking down the Gun-Free School Zones Act, are incomparable to “Obamacare,” a statute that runs to 2,700 pages and transforms the nation’s health policy. “Unprecedented” does not go too far in the circumstances.
On April 5, U.S. Attorney General Eric Holder wrote to Judge Smith (and two other members of the panel) in response to the order. His letter does indeed run, obediently, to 21/2 single-spaced pages. And while it concedes the obvious, “the power of the courts to review the constitutionality of legislation is beyond dispute,” it seizes the day. The attorney general reminded the Court of Appeals that acts of Congress are “presumptively constitutional,” a presumption that is “strong.” The modern rule, Holder said, “forbids striking down an Act of Congress except upon a clear showing of unconstitutionality,” quoting Salazar v. Buono (2010). The high court consequently accords “great weight to the decisions of Congress.”
The attorney general might have taken a tougher line with Judge Smith but to little purpose. The judge, on the other hand, merits our displeasure for treating our chief law enforcement officer like a high school kid simply to get at the president. Federal judges win courtesy because they are distinguished lawyers who respect deeply the process in which they are engaged. Judge Smith forgot that the other day.
Joseph D. Becker, a founding partner of Becker, Glynn, Melamed & Muffly, is the author of The American Law of Nations, (Juris, 2001).