Not an altogether partisan reaction — although, Toobin being Toobin, it’s pretty darned partisan. Orin Kerr, a regular contributor to the right-leaning Volokh Conspiracy, said this of the Fifth Circuit’s now-famous order yesterday:
Having heard the audio, the tone of the questions was quite different from what I was expecting based on the story. It came off to me as earnest and genuine, not just an effort to score a cheap political point. With that said, the order still strikes me as highly inappropriate: The DOJ lawyer was quite clear as to DOJ’s position, and lower court judges deciding cases based on briefing and argument 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.
It was weird enough for an appeals court to go out of its way to take judicial notice of comments that were not in the record before it. The government lawyer, Dana Lydia Kaersvang, quickly assured the court that Marbury v. Madison, the 1803 case establishing the principle of judicial review, “is the law.”
Which should have been the end of the strange interlude, but it was not enough for Smith…
It is, as Chief Justice John Marshall wrote in Marbury, emphatically the province of the judiciary to say what the law is. It is emphatically not the province of the judiciary to interject itself into the political debate, which is what Smith’s outrageous, unprovoked order inevitably does. I believe fervently in the importance of life tenure, but judicial shenanigans like this are enough to make you wonder.
Yeah, I can understand the court tossing a question about judicial review at the DOJ’s lawyer during oral arguments as a pointed reminder that Obama’s comments didn’t go unnoticed, but I don’t understand asking them for a letter when she affirmed for them on the spot that of course the Department believes Marbury v. Madison is good law. It really is, as my appellate-lawyer friend said yesterday, more like a “homework assignment” than a request for a clarification of a legal point in dispute. So let me reframe my question for litigators from that last post this way, since this is, essentially, a very mild sanction for O’s sly attempt to impugn the Supreme Court’s integrity: How often do appellate courts request written submissions from a party as a sort of reprimand, in the interest of proving a point or sending a message, rather than in the interest of settling a contended point of law?