Fifth Circuit calls out DOJ lawyer: Is your boss now claiming that courts don’t have the power to strike down laws? Update: A lawyer’s take

posted at 5:19 pm on April 3, 2012 by Allahpundit

Via Ace. Serious question for appellate lawyers: Is it S.O.P. for judges to introduce comments made outside the courtroom by one of the parties to the litigation in this way? Unless I missed something, the DOJ wasn’t and isn’t arguing Obama’s moronic claim yesterday that the Supremes striking down ObamaCare would be “unprecedented.” It sounds like Judge Smith (a Reagan appointee) was simply honked off at The One’s demagoguery in the Rose Garden and wanted to upbraid him for it.

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.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don’t have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama’s comments yesterday about judges being an “unelected group of people.”

They ordered the DOJ to submit a three-page letter stating its position on judicial review by noon on Thursday, even though the Department’s lawyer conceded that Marbury v. Madison is good law and even though Obama himself never went so far yesterday as to say that the Supreme Court lacks the power to overturn laws. He said overturning ObamaCare specifically would be “unprecedented,” but no true-blue Warren-Court-loving lefty like The One would ever seriously impugn judicial review. And the Fifth Circuit knows it. What they’re doing here is humiliating him as a way of getting him to stop the demagoguery, with the letter acting as the equivalent of a kid writing on the blackboard as punishment after class. “I will not question Marbury v. Madison, I will not question Marbury v. Madison, I will not question…” Rest assured, a liberal court will pay President Romney back for this somehow at some point. And in fact, O might use the letter as a political opportunity. Now that there’s bound to be intense media interest in it, he could explain in it why (a) yes, of course he accepts judicial review, unlike that darned Newt Gingrich who wants to haul judges before Congress, and (b) it would nonetheless be kinda sorta “unprecedented” to use judicial review on his pet health-care legislation.

He elaborated a bit on that last point today:

“We have not seen a court overturn a law that was passed by Congress, on a economic issue, like healthcare — like I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner [vs New York, 1905],” Obama told reporters during the question-and-answer session of the Associated Press luncheon…

“The point that I was making is that the Supreme Court is the final say on our Constitituon and our laws, and all of us have to respect it,” Obama said. “But it precisely because of that extraordinary power that the court has trad exercise significant restraint” when considering laws passed on the basis of the Commerce Clause.

His point is that the two landmark cases over the past 20 years in which the Court struck down laws passed under the Commerce Clause didn’t really have to do with commerce. One was a gun-control measure and the other was the Violence Against Women Act. In those cases, he’s saying, you can understand why the Court would object: The statutes are targeting activity that isn’t really commercial in the guise of “commercial” regulation. In this case, with O-Care, the activity in question really is commercial. All of which is super, but it’s based on the standard liberal idea that there really is no conceptual limit to the Commerce Clause except the Bill of Rights. As long as Congress is genuinely trying to regulate commercial activity and they don’t step on any First or Second Amendment rights, they can pretty much go nuts. Just vote ‘em out if they do. Who needs enumerated powers?

Via the Daily Caller, here’s Scarborough wondering why a con law prof would go out of his way to blur the lines on separation of powers. Elections, dear boy, elections!

Update: A friend who’s an appellate lawyer answers my question in the intro:

It is not common for appeals courts to introduce party statements from outside the courtroom and demand explanations, but that’s only because most litigants aren’t dumb enough to make statements outside the courtroom likely to impact their cases. The notable exception to that general rule is the government-as-litigant, which, because it is led by politicians and ever-shifting public policy, is more likely than most litigants to have to explain statements or policies that may run against its best legal interests.

I’ll give you just two recent examples, where appellate courts have done like the Fifth Circuit did here. First, when the Obama Administration announced its decision to not defend DOMA even while it continues to enforce DOMA, several judges in DOMA-related cases (and a few in barely-related cases) demanded that DOJ explain. Those demands for explanation came from both Republican- and Democrat-appointed judges. Second, after months of the Administration attempting to push its “prosecutorial discretion” policy with respect to aliens in removal proceedings, the Ninth Circuit finally fed up with the apparent collision of the Administration’s announced discretion policy and the actual prosecutorial decisions of DHS, demanded in five test cases that DOJ explain what the discretion policy actually entailed and what that means for the Ninth Circuit’s cases. So this happens and it’s not the first time for Obama’s Administration.

As you noted, DOJ isn’t arguing President Obama’s “unprecedented” talking point with respect to the healthcare reform law. DOJ’s not that stupid. But from the courts’ point of view, that is a reason to be more concerned by Obama’s statement, not less. If Obama is announcing a shift in the Executive Branch’s position, of which DOJ is a part, then the courts are entitled to ask about it. Now, you and I and the judges know that Obama’s probably not announcing policy changes in what was just a campaign speech. But words have consequences, particularly for litigants. The courts may choose take Obama at his word, unless he explains that it was just a campaign speech and not intended to represent the position of the Executive Branch on the matter. The Fifth Circuit’s “homework assignment” is a fairly gentle reminder to the President that he actually leads the United States government and not just the campaign for his reelection.


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Everyone knows the supreme court is now a political court.

That information should be made available to very American reviewing a case which has been decided by the court

liberal4life on April 3, 2012 at 5:22 PM

So I guess he’s cool with Dred Scott and Kormatsu.

Most. Brilliant. Legal Mind. Evah!

He really is a stuttering clusterfark of a miserable tyrant.

Rixon on April 3, 2012 at 5:22 PM

the hacktivist neocons on the supreme court are not infallible they already dealt 2 major blows to freedom w/ Bush v. Gore and Citizens United if they do it a 3rd time we every right to call them out you pearl-clutchers!

DBear on April 3, 2012 at 5:23 PM

That 11 dimensional chess that 0bama plays is too just much for us to understand. What a SCOAMF!

jukin3 on April 3, 2012 at 5:23 PM

I like showing up Obama’s demagoguery and crapola as much as the next guy or gal but this is grandstanding by this judge and it’s pretty stupid.

Stick to your job as judge and not this nonsense.

SteveMG on April 3, 2012 at 5:23 PM

liberal4life on April 3, 2012 at 5:22 PM

Everyone knows…
Idiot says idiotic things.

22044 on April 3, 2012 at 5:23 PM

The 5th Circuit did this, IMHO, because they’re still pissed at Obama and SecInt Salazar blatantly ignoring them over the permitoreum in the Gulf of Mexico.

teke184 on April 3, 2012 at 5:24 PM

Activist court? What activist court?

plewis on April 3, 2012 at 5:24 PM

Anyone who attended any ‘Constitutional Law’ classes taught by Obama should immediately file a class action lawsuit demanding a refund of tuition and fees.

kbTexan on April 3, 2012 at 5:24 PM

Does anyone have the juice to call down the Emperor..? The legacy certainly won’t.

d1carter on April 3, 2012 at 5:25 PM

We have not seen a court overturn a law that was passed by Congress, on a economic issue, like healthcare…

Is this a typo in the transcript or did obaka really say this?

ladyingray on April 3, 2012 at 5:25 PM

d1carter on April 3, 2012 at 5:25 PM

Sorry, should have been “the legacy media”…

d1carter on April 3, 2012 at 5:26 PM

That 11 dimensional chess that 0bama plays is too just much for us to understand. What a SCOAMF!

jukin3 on April 3, 2012 at 5:23 PM

The thugs on the bench scare no one.

Scalia is a disgrace who needs to be called out. Listening to his questioning has to be the lowest moment in the history of the political court (formerly known as the supreme court)

He doesn’t even pretend to hide the fact that he is an activist judge hell bent on pushing right wing agenda.

liberal4life on April 3, 2012 at 5:27 PM

All part of that “fundamental transformation”, comrades!

Jeddite on April 3, 2012 at 5:28 PM

But demagoguery is what liberals do best and at this point it’s all they got because all their policies are failing.

Yakko77 on April 3, 2012 at 5:28 PM

I like showing up Obama’s demagoguery and crapola as much as the next guy or gal but this is grandstanding by this judge and it’s pretty stupid.

Stick to your job as judge and not this nonsense.

SteveMG on April 3, 2012 at 5:23 PM

Between this kind of behavior, signs held up in Congress, or members of Congress wearing hoodies, both the collective intelligence and class of this country seems to be falling like a rock. It’s the kind of antics you’d expect from a banana republic.

bayam on April 3, 2012 at 5:28 PM

Hee Haw justice. Any tornadoes near by?

KeninCT on April 3, 2012 at 5:28 PM

Everyone knows the supreme court is now a political court.

Everybody has known this for decades.

Obama knew this when he appointed leftwingers who don’t give a whiff to the Constitution to the court.

It isn’t a recent discovery now that your President’s unconstitutional piece of crap is in the crosshairs that the court has become politicized (thank you Ted Kennedy).

Guess he regrets chewing out the court on national TV at the SOTU address a few years back, huh?

That information should be made available to very American reviewing a case which has been decided by the court

liberal4life on April 3, 2012 at 5:22 PM

Where have you been in the last, oh, 40 years?

Not being born?

Good Lt on April 3, 2012 at 5:28 PM

liberal4life on April 3, 2012 at 5:22 PM

What a trenchant argument.

DrSteve on April 3, 2012 at 5:28 PM

Libs, listen up — its not activism when you are following and enforcing the Constitution.

Axion on April 3, 2012 at 5:28 PM

SCOAMF’s only interest in the Constitution was only to learn how to circumvent or trash it.

Rixon on April 3, 2012 at 5:28 PM

Also, this:

Obama campaign video claiming ‘it’s on’ in second term taken down

In the web video that was taken down, actress Tatyana Ali talked casually about the implications of the president’s re-election.
“What really makes me excited about that is that a United States president only has two terms,” she said. “In the second term, it’s on” — because they wouldn’t have to worry about re-election.

Ward Cleaver on April 3, 2012 at 5:29 PM

Yeah but Marbury v Madison wasn’t cited as precedent for “judicial review” until 1887.

Akzed on April 3, 2012 at 5:29 PM

Barry the Affirmative Action Adjunct Lecturer in Constitutional Law.

galtani on April 3, 2012 at 5:29 PM

“Term limits for all Judges!!!”

-Pharaoh Barry Obamseyss IIV

portlandon on April 3, 2012 at 5:29 PM

Hee Haw justice. Any tornadoes near by?

KeninCT on April 3, 2012 at 5:28 PM

Taste the sweet nectar of checks and balances.

Your President is not a dictator, nor will he be. The court is limiting his power because he’s incapable of doing it himself.

Good Lt on April 3, 2012 at 5:29 PM

Anyone who attended any ‘Constitutional Law’ classes taught by Obama should immediately file a class action lawsuit demanding a refund of tuition and fees.

kbTexan on April 3, 2012 at 5:24 PM

He likely had a “lite” version of the course, for foreign students.

Archivarix on April 3, 2012 at 5:30 PM

He really is a stuttering clusterfark of a miserable tyrant.

Rixon on April 3, 2012 at 5:22 PM

oh yes, what a tyrant! god forbid people don’t have to go bankrupt because they get sick in the greatest country ever ever in everdom never mind every other civilized country has universal health care and the sky has not fallen. what exactly has the GOP done for health care except EXPAND the entitlement state w/ Medicare part D? an unpaid for big giveaway to big pharma! oh yes let’s put that party back in charge sure miss the Bush years of terrorist attacks, boneheaded invasions and expansion of government!

DBear on April 3, 2012 at 5:30 PM

Yes. That is exactly what the President is saying. How dare anyone disagree with or challenge Obama.

DAT60A3 on April 3, 2012 at 5:30 PM

Everyone knows the supreme court is now a political court.

liberal4life on April 3, 2012 at 5:22 PM

Exactly right. Everyone knew before arguments even began how Kagan, Sotomayor, Breyer and Ginsburg would vote. Their decisions will be rendered exclusively on the basis of politics.

kbTexan on April 3, 2012 at 5:30 PM

I TOLD ALL OF YOU THIS WAS GOING TO BE AN AWESOME WEEK LOL. OBLAMMO GETS SLAPPED IN THE FACE AGAIN, THIS TIME BY COURTS. ITS TOO MUCH…CANT STOP LAUGHING LOL.

97 – 0 LAST YEAR

414 – 0 THIS PAST WEEK

DONKEYPUNCH TO BACK OF OBLAMMOS HEAD – THIS WEEK

AND ITS ONLY TUESDAY ROFLMOO…LETS SEE WHAT ELSE WE CAN BEAT HIS ASS WITH THIS WEEK, LOL…

WHAT AN ABSOLUTELY DELICIOUS FLAVOR ICING YOU HAVE THERE, 5TH COURT…

MooCowBang on April 3, 2012 at 5:30 PM

Too bad this isn’t an election year…

… or else the GOP could use the comments from the president and others in the Executive Branch that indicate they believe judges don’t have the power to review laws and strike those that are unconstitutional and slap Obowma and the Democrat party in the face with a nice campaign ad.

What…?

… oh.

Seven Percent Solution on April 3, 2012 at 5:30 PM

Axion on April 3, 2012 at 5:28 PM

THIS. SInce it’s inception the SCOTUS has tossed close to 100 laws. Activism is legislating from the bench; justices writing laws out of whole cloth. See Roe v. Wade. Whatever your feelings about abortion, the decision was completely UNCONSTITUTIONAL.

Rixon on April 3, 2012 at 5:30 PM

Calling Obama a “constitutional law lawyer” is like calling Joe Biden a genius.

natasha333 on April 3, 2012 at 5:31 PM

Everyone knows the supreme court is now a political court.

That information should be made available to very American reviewing a case which has been decided by the court

liberal4life on April 3, 2012 at 5:22 PM

How to you always get in first with your liberal talking points posts? You MUST be Allah’s sock puppet.

steebo77 on April 3, 2012 at 5:31 PM

Activist judges are judges who don’t rule the way you want!

gerry-mittbot-activist poster

gerrym51 on April 3, 2012 at 5:32 PM

The thugs on the bench scare no one.

Scalia is a disgrace who needs to be called out. Listening to his questioning has to be the lowest moment in the history of the political court (formerly known as the supreme court)

He doesn’t even pretend to hide the fact that he is an activist judge hell bent on pushing right wing agenda.

liberal4life on April 3, 2012 at 5:27 PM

Actually, they scare the hell out of you, which is why you’re now trying to destroy them.

And you’re making it clear what the screaming liar Obama is saying, which is that courts have no power to strike down legislation.

Scream, wiggle, and lie, thug. The American public has caught on to how you and your bigot OWS thug Obama operate. You’ll be calling for the assassination of Supreme Court justices any minute because you’re that much of a piece of sh*t.

northdallasthirty on April 3, 2012 at 5:32 PM

Libs, listen up — its not activism when you are following and enforcing the Constitution.

Axion on April 3, 2012 at 5:28 PM

Liberals think it’s “unprecedented” and “activist” when the court uses the Constitution to rule on something, but it’s perfectly peachy for the liberal justices to quote international law in a ruling.

specialkayel on April 3, 2012 at 5:33 PM

ROFLOL!

txhsmom on April 3, 2012 at 5:33 PM

Obama ought to try being honest on occasion.

forest on April 3, 2012 at 5:33 PM

And here I’m still trying to resolve how health insurance can’t currently be sold across state lines but Obamacare is being argued as covered under the interstate commerce clause…der

DanMan on April 3, 2012 at 5:33 PM

Everyone knows the supreme court is now a political court.

That information should be made available to very American reviewing a case which has been decided by the court

liberal4life on April 3, 2012 at 5:22 PM

…how come you didn’t show up on the DUMB and DUMBER thread???? Feel intimadated?

KOOLAID2 on April 3, 2012 at 5:33 PM

This gives some juice to the idea that the Supremes would rebel against him calling them out rather than acquiesce…

ChrisL on April 3, 2012 at 5:34 PM

Using Barack’s logic, the Southern states no longer need to comply with judicial activism re: redistricting.

Also, what’s compelling Barack and Eric to actually write this letter? Will the judge jail them?

SouthernGent on April 3, 2012 at 5:34 PM

Obooba is invincible! He ain’t ascared of no judges. Nothing can stop him!

“I think if President Obama came out as gay, he wouldn’t lose the black vote,” a cheerful Van Jones told MSNBC this afternoon.

“Honey Prez don’t care.”

Akzed on April 3, 2012 at 5:34 PM

The thugs on the bench scare no one.

Scalia is a disgrace who needs to be called out. Listening to his questioning has to be the lowest moment in the history of the political court (formerly known as the supreme court)

He doesn’t even pretend to hide the fact that he is an activist judge hell bent on pushing right wing agenda.

liberal4life on April 3, 2012 at 5:27 PM

don’t forget the Tea Party bought and paid for puppet Clarence Thomas!

DBear on April 3, 2012 at 5:34 PM

You’re not the boss of me!!!

-O-

ClanDerson on April 3, 2012 at 5:34 PM

It sounds like Judge Smith (a Reagan appointee) was simply honked off at The One’s demagoguery in the Rose Garden and wanted to upbraid him for it.

I agree that was not how a judge should act. But it is not how a President should act either

Grunt on April 3, 2012 at 5:34 PM

Obama is just pissed because SCOTUS wont rip up the Constitution like he has. Obama vs. Liberty

Weight of Glory on April 3, 2012 at 5:34 PM

Obama needs to be called out on what he says and does, no ground should be given at all to Liberals these days – silence is often considered consent and agreement. The ante has been upped, if you want to stay in the game then we’d better learn to play a little rougher.

Ukiah on April 3, 2012 at 5:35 PM

the hacktivist neocons on the supreme court are not infallible they already dealt 2 major blows to freedom w/ Bush v. Gore and Citizens United if they do it a 3rd time we every right to call them out you pearl-clutchers!

DBear on April 3, 2012 at 5:23 PM

What about the Heller decision? “Call them out” now!

BierManVA on April 3, 2012 at 5:35 PM

Libs, listen up — its not activism when you are following and enforcing the Constitution.

Axion on April 3, 2012 at 5:28 PM

“In a time of universal deceit – telling the truth is a revolutionary act.”
George Orwell

kbTexan on April 3, 2012 at 5:36 PM

Everyone knows since there is a possibility that the supreme court might disagree with liberal Democrat positions it is now a political court.

That information (along with the disagreeing Justices home addresses) should be made available to very American reviewing a case which has been decided by the court

liberal4life on April 3, 2012 at 5:22 PM

FIFY

ghostwalker1 on April 3, 2012 at 5:36 PM

He doesn’t even pretend to hide the fact that he is an activist judge hell bent on pushing right wing agenda.

liberal4life on April 3, 2012 at 5:27 PM

Kinda cool watching you get cheesed……

itsspideyman on April 3, 2012 at 5:37 PM

Goin’ to need to get the straight jackets ready for Obama…
He is going to crack…

Electrongod on April 3, 2012 at 5:37 PM

Even with Obama stacking SCOTUS with his peeps Obamacare is still seen as a liberty crushing hammer.

Weight of Glory on April 3, 2012 at 5:37 PM

I wonder after it`s struck down, we`ll see that supposed Homeland Security Force (that Obama envisioned as being as well funded as the DoD) start rolling out.

ThePrez on April 3, 2012 at 5:37 PM

FYI to the drones trolling here, Bush was going to win the election no matter what. The only reason it reached the SCOTUS was because of the electoral shenanigans (continually changing standards of what was a legit vote, vis a vis, chads, voter intent, etc.) being played by the Florida Election Commission and the Florida Supreme Court. The vote was certified by Kathryn Harris and Gov. Jeb Bush. It was GORE who brought the law suit. SCOTUS sorted it out. Bush had the electoral votes and as it turned out the popular vote by about 2,000. Had it gone to the Congress, a Republican majority by its legal authority would have voted Bush to be the president.

As for Citizens United, it was a vote FOR free speech. Corporations or other political groups should have the same free speech rights as unions. The libs are only peeved because they now have to play on an even field.

Rixon on April 3, 2012 at 5:37 PM

Speaking of Unelected.
How bout them Czars!

400lb Gorilla on April 3, 2012 at 5:37 PM

What they’re doing here is humiliating him as a way of getting him to stop the demagoguery

Good. I hope Teh One gets good and pissed about it. He’s going to need some practice for November when the voters tell him where he can shove his Marxist Utopia.

Kataklysmic on April 3, 2012 at 5:38 PM

PBHO is kind of like a god figure, standing above it all and being godly. And cool. Godly and cool.

Bishop on April 3, 2012 at 5:38 PM

don’t forget the Tea Party bought and paid for puppet Clarence Thomas!

DBear on April 3, 2012 at 5:34 PM

You mean the Tea Party that started in 2009?

kbTexan on April 3, 2012 at 5:38 PM

He doesn’t even pretend to hide the fact that he is an activist judge hell bent on pushing right wing agenda.

liberal4life on April 3, 2012 at 5:27 PM

I asked this on another thread: Everyone knows that segregation laws were “popularly enacted” by various legislatures. Would you characterize the landmark opinion issued in
Brown vs Board of Education
the act of an “activist court”? If not, your reasoning wouldn’t be based on the plain fact that you agree with that decision and would not agree with the Court overturning the so-called health care reform act, would it?

You’re the one who is political. Not the Supreme Court.

totherightofthem on April 3, 2012 at 5:39 PM

They ordered the DOJ to submit a three-page letter stating its position on judicial review by noon on Thursday, even though the Department’s lawyer conceded that Marbury v. Madison is good law and even though The One himself never went so far yesterday as to say that the Supreme Court lacks the power to overturn laws….What they’re doing here is humiliating him as a way of getting him to stop the demagoguery, with the letter acting as the equivalent of a kid writing on the blackboard as punishment after class. “I will not question Marbury v. Madison, I will not question Marbury v. Madison, I will not question…”

It was the judge’s equivalent of holding a press conference.

INC on April 3, 2012 at 5:39 PM

You mean the Tea Party that started in 2009?

kbTexan on April 3, 2012 at 5:38 PM

SHUT UP RACIST

Good Lt on April 3, 2012 at 5:39 PM

Smith, a Reagan appointee

This is why elections are so important, even if you have to hold your nose for your own nominee.

TxAnn56 on April 3, 2012 at 5:40 PM

did Clarence Thomas have anything to say during the hearings? or does he have to get orders from Tea Party lobbyist wife Ginny first?

DBear on April 3, 2012 at 5:40 PM

never mind every other civilized country has universal health care and the sky has not fallen

In some places it is falling even now.

Besides, the statement “I am a net importer of medical technology and innovation” cannot hold for all countries simultaneously.

DrSteve on April 3, 2012 at 5:40 PM

oh yes, what a tyrant! god forbid people don’t have to go bankrupt because they get sick in the greatest country ever ever in everdom never mind every other civilized country has universal health care and the sky has not fallen.

DBear on April 3, 2012 at 5:30 PM

Then why is Britain moving to privatize portions of their healthcare system?

ladyingray on April 3, 2012 at 5:40 PM

every other civilized country has universal health care and the sky has not fallen.

DBear on April 3, 2012 at 5:30 PM

Tell me, how are those European economies holding up?

Washington Nearsider on April 3, 2012 at 5:40 PM

don’t forget the Tea Party bought and paid for puppet Clarence Thomas!

DBear on April 3, 2012 at 5:34 PM

You’re an idiot. It’s a simple as that.

totherightofthem on April 3, 2012 at 5:40 PM

ladyingray on April 3, 2012 at 5:40 PM

Missed it by thaaaaaaaat much.

Great minds, and all that.

Washington Nearsider on April 3, 2012 at 5:40 PM

liberal4life on April 3, 2012 at 5:27 PM

Why didn’t Kagan recuse herself…?

“If a judge “has served in governmental employment and, in such capacity, participated as counsel, advisor, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy,” she must recuse herself when the case reaches her court (28 U.S.C. 455 (b)(3)).”

Seven Percent Solution on April 3, 2012 at 5:41 PM

Look. If one of the three sides of American governance speaks out like Obama did and threaten one of the other sides, why shouldn’t the called out respond back.

It was poor decisionmaking by Obama to make the statements he made. That is more than enough reason to say Bye-Bye.

bumsteaddithers on April 3, 2012 at 5:41 PM

Clarence Thomas has been bought and paid for? Where is the receipt because I would like to use it as a tax write-off.

Bishop on April 3, 2012 at 5:42 PM

Everyone knows the supreme court is now a political court.

That information should be made available to very American reviewing a case which has been decided by the court

liberal4life on April 3, 2012 at 5:22 PM

…how come you didn’t show up on the DUMB and DUMBER thread???? Feel intimadated?

KOOLAID2 on April 3, 2012 at 5:33 PM

Are you kidding? What word is lower than “dumber”? He didn’t want to show them up as being the extreme dumb!

Meanwhile, I think we’ve been having some typographical errors on Obama’s history. He wasn’t a constitutional law attorney; he was an UNconstitutional law law attorney.

PackerFan4Life on April 3, 2012 at 5:42 PM

Don’t forget that DBear, liberal4life, and the rest of the Barack Obama Party have already called for the lynching of Supreme Court justices.

These sick, deluded Obama thugs are already calling for the Supreme Court justices who disagree with Obama to be murdered. The Barack Obama Party, led by Nancy Pelosi and Harry Reid, is calling for the assassination and murder of the Supreme Court justices.

northdallasthirty on April 3, 2012 at 5:42 PM

Everyone knows the supreme court is now a political court.

That information should be made available to very American reviewing a case which has been decided by the court

liberal4life on April 3, 2012 at 5:22 PM

Sounds like you’re keyed up to support another level-headed FDR style court packing scheme. If anyone will save us from the corrupting effects of politics on the judiciary, it will be hyper partisan liberals with their court packing ideas and penumbra catching butterfly nets.

JeremiahJohnson on April 3, 2012 at 5:43 PM

don’t forget the Tea Party bought and paid for puppet Clarence Thomas!

DBear on April 3, 2012 at 5:34 PM

Seriously?

ladyingray on April 3, 2012 at 5:43 PM

liberal4life on April 3, 2012 at 5:22 PM

And you expect us to believe that Barack Hussein Downgrade isn’t political?

And have you been able to come up with a cogent response to the question the on Downgrade’s War on Liberty?

The natural progress of things is for liberty to yield, and government to gain ground. Thomas Jefferson

Chip on April 3, 2012 at 5:43 PM

Actually, the fact that the court has failed the duty it has to protect the states and the people from ever increasing encroachment by the federal government means that it needs to review the view it has of the comerce clause and try to understand why their current use of it is unconstitutional.

The reason for the commerce clause is to increase commerce between the states and prevent one state from enacting laws that lower commerce between the states. Such as Iowa saying that Illinois cannot transport their corn crops accross Iowa land. Iowa could do this, thinking that they could sell more corn to the western states if they were able to prevent Illinois from transporting their corn on Iowa roads. Preventing Iowa from making such a law would fall under the purview of the commerce clause.

Pretty much the rest of the government’s use of the commerce clause goes against any reasonable reading of the Constituition.

astonerii on April 3, 2012 at 5:43 PM

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.

I hope she has plans for alternate employment. Chicago thugs don’t react well to disagreement. She just pointed out the fact that Zero is fibbing a bit.

Zero seems to have really stirred up a hornets nest.

dogsoldier on April 3, 2012 at 5:43 PM

First the 0care law is going down, Fingers crossed. Then 0 is going down. Then I dance!

Bmore on April 3, 2012 at 5:44 PM

DBear on April 3, 2012 at 5:34 PM

Why didn’t Kagan recuse herself…?

“If a judge “has served in governmental employment and, in such capacity, participated as counsel, advisor, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy,” she must recuse herself when the case reaches her court (28 U.S.C. 455 (b)(3)).”

Seven Percent Solution on April 3, 2012 at 5:44 PM

I like showing up Obama’s demagoguery and crapola as much as the next guy or gal but this is grandstanding by this judge and it’s pretty stupid.

Stick to your job as judge and not this nonsense.

SteveMG on April 3, 2012 at 5:23 PM

You are going against the grain here. This is not how wingnuts do things.

0bamaderangementsyndrom on April 3, 2012 at 5:44 PM

“I will not question Marbury v. Madison, I will not question Marbury v. Madison, I will not question…”

That is one of the funniest things I have ever read. With all the weather here in our fine state today, that was the laugh I needed. Thanks, Allah.

av8tr on April 3, 2012 at 5:44 PM

don’t forget the Tea Party bought and paid for puppet Clarence Thomas!

DBear on April 3, 2012 at 5:34 PM

Was Thomas not appointed to the supremes in 1991? Get your facts straight, or you will be called out everytime.

Barred on April 3, 2012 at 5:44 PM

If they dare strike down this law a crusade of enormous proportion will be put up against the activist political court.

liberal4life on April 3, 2012 at 5:44 PM

Payback to Romney is the least of the problems here. This suggests that the divisions in this country are mounting, and each side’s credibility is diminishing with the opposition. If the sniping and griping and slapping of eachother doesn’t settle down quickly this will spill over into all aspects of federal government. The politicizing of the courts is bad for everyone and I fear it is the beginning of some fairly horrible things in the near future.

WashingtonsWake on April 3, 2012 at 5:44 PM

When I read the article I couldn’t help but feel the urge to stand up and cheer. YOU ROCK Appellate court!

PackerFan4Life on April 3, 2012 at 5:45 PM

The thugs on the bench scare no one.

Scalia is a disgrace who needs to be called out. Listening to his questioning has to be the lowest moment in the history of the political court (formerly known as the supreme court)

He doesn’t even pretend to hide the fact that he is an activist judge hell bent on pushing right wing agenda.

liberal4life on April 3, 2012 at 5:27 PM

Ginsburg, Kagan and Sotomayor are all disgraces who need to be called out. Listening to their questioning (and feeble attempts to make the administration’s case for them) has to be the lowest moment in the history of the political court (formerly known as the supreme court)

They don’t even pretend to hide the fact that they are activist judges hell bent on pushing the wacko leftist agenda.

I think my version is much more accurate.

Meople on April 3, 2012 at 5:45 PM

Constitutional law and the errors of the court for the last 200 years.

Prof B. Obama Room 2294

tjexcite on April 3, 2012 at 5:45 PM

astonerii on April 3, 2012 at 5:43 PM

Exactly so. The commerce clause was never intended to regulate individual behavior. It was intended to keep chaos at bay by preventing states from interfering with commerce among and between each other.

totherightofthem on April 3, 2012 at 5:45 PM

don’t forget the Tea Party bought and paid for puppet Clarence Thomas!

DBear on April 3, 2012 at 5:34 PM

Thomas was nominated back in 1991, long before the current Tea Party movement came into existence.

IMO, one reason his nomination went through, despite the usual demagoguery, is that Teddy Kennedy was fairly mum throughout the proceedings, TK being highly aware that he and his family once again were having their treatment of women scrutinized due to his recent bar hopping with his nephew (What kind of guy goes barhopping with a nephew?), and his nephew was charged with date rape because of subsequent events that evening. I will never forget that Lewis Grizzard wrote one of his most scorching pieces about Teddy, among other things saying that Teddy should show up for the Thomas hearings with a bag over his head.

INC on April 3, 2012 at 5:46 PM

Hey, Barry, you go fracking around the Constitution, sometimes you hit a pocket of Hot Gas.

EMD on April 3, 2012 at 5:46 PM

Wow he thinks he can run for reelection against the SC.
Does Obama know that 65% of people want the court to toss this healthcare bill. Wow what a maroon

Conservative4ev on April 3, 2012 at 5:46 PM

If they dare strike down this law a crusade of enormous proportion will be put up against the activist political court.

liberal4life on April 3, 2012 at 5:44 PM

Nah, Obama just fired the clowns.

faraway on April 3, 2012 at 5:46 PM

Amazing how those seperation of powers work.

Limerick on April 3, 2012 at 5:46 PM

Great minds, and all that.

Washington Nearsider on April 3, 2012 at 5:40 PM

:D

ladyingray on April 3, 2012 at 5:46 PM

Seriously?

ladyingray on April 3, 2012 at 5:43 PM

The trolls are all freaking out over this.

dogsoldier on April 3, 2012 at 5:46 PM

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