The Thinking 

Federal Judges Respond to Obama

April 3, 2012


A FEDERAL appeals court ordered the Department of Justice today to clarify its interpretation of federal judicial powers in light of President Obama’s remarkable statements on Monday calling the Supreme Court “an unelected group of people” and suggesting it doesn’t have the authority to overturn Obamacare.

The president stated on Monday, in response to questions about the case, that it would be an “unprecedented, extraordinary” move for the court to overturn a law passed by Congress. He added:

 For years what we’ve heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, there’s a good example and I’m pretty confident that this court will recognize that, and not take that step.

He suggested the court overlook the “legal element” in favor of the “human element” of the case:

This is not an abstract argument. People’s lives are affected by the lack of availability of health care, the unaffordability of health care, or their inability to get health care because of preexisting conditions. There is not only an economic element to this and a legal element to this, but there is a human element to this.”

Today, he clarified his statements:

The point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this.

Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there. I have enormous confidence that in looking at this law, not only is it constitutional, but that the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has.

Reader Kevin V. writes:

This is absolutely amazing. Open warfare between the branches, with the Department of Justice and Attorney General being ordered to go on record stating the President was wrong.

But that isn’t really the most disturbing thing. I think one has to assume that Barack Obama, Harvard JD, knows what powers the Supreme Court has and why. Which means, he knowingly made that statement with the clear purpose of putting open political pressure on the Supreme Court. Willing to lie, about a key feature of the Constitution, which he took an oath to uphold, to put some kind of Kenyan Third-World pressure on the gosh darn Supreme Court of the United States of America.

He should be impeached.

                   —- Comments —

Paul writes:

Obama isn’t the first major American fascist official to urge Americans to ignore the Constitution that he swore to defend. In fact, he is simply following, no doubt one of his heroes, the also unprincipled black member of one of our fundamental branches of government: Justice Thurgood Marshall. Marshall said, “You do what you think is right and let the law catch up.”

Charming isn’t it? It was the good Justice Marshall (known for stupid opinions) that wrote the stupid but unanimous opinion in Brown v. Board of Education, wherein the liberal Warren court heralded that separate by definition is unequal. But liberal justices don’t follow that liberal edict: they won’t admit separate human beings are unequal. Logic is lacking even at the highest levels of intellect and government.

Jesse Powell writes:

Just a couple of months ago Newt Gingrich proposed that controversies between the different branches of government should be settled by a “2 out of 3 prevails” rule. In other words, Congress and the President united against the Supreme Court wins. Congress united with the Supreme Court overrules the President. The President united with the Supreme Court overrules Congress. This radical proposal from Gingrich gets rid of the idea that the Supreme Court has any “special purpose” that rises above mere politics.

Interestingly enough applied to the particular case of the Affordable Care Act (Obamacare) according to Gingrich’s own rule the President would be fully within his rights to ignore any Supreme Court rulings that might go against him because he could claim the support of Congress along with his own position as President since the bill passed the Congress to become law in the first place.

Newt Gingrich said, in support of his proposition, that “The founding fathers designed the Constitution very specifically in a Montesquieu spirit of the laws to have a balance of power – not to have a dictatorship by any one of the three branches.” Gingrich further added that many lawyers will be frightened by his proposal; as he puts it “They’ve had this run of 50 years of pretending judges are supreme, that they can’t be challenged. The lawyer class defines America. We’ve had rulings that outlawed school prayer, we’ve had rulings that outlawed the cross, we’ve had rulings the outlawed the 10 Commandments, we’ve had a steady secular drive to radicalize this country away from all of its core beliefs.”

The main point of contention before the Supreme Court regarding the Affordable Care Act is the “individual mandate.” Does Congress have the right to force people to buy health insurance? President Obama may think that the Affordable Care Act is primarily a matter of taxing and spending and so is rightfully within the “territory” of Congress such that the Supreme Court would be overreaching in throwing out the law simply because one part of the law affects individual rights in a way the Supreme Court may not like.

Laura writes:

The difference between Gingrich’s idiotic statement, which does away with the Constitutional foundation of our government, is that Gingrich was bloviating, as is his wont, and proposing a radical change to the Constitution, which would have to be approved by voters.

In contrast, Obama, who is president and has sworn to uphold the Constitution, has announced that he does not recognize one of the key provisions of the Constitution. His statement represents a profound violation of his responsibilities and an act of betrayal. In my view, he is not a legitimate president.


Paul writes:

Sorry, I realized earlier today that I made mistakes of fact. (Law school is a long way behind.) Marshall was an attorney who argued the case against segregation in Brown. In addition, the liberal Chief Justice Earl Warren (appointed by Ike) wrote the opinion after taking the case over from the liberal Black Court.

Ike is typical of establishment Republicans, such as Nixon, Reagan (O’Conner and Kennedy), and H. Bush for making big blunders in their Court appointments.

I expect George W. was not smart enough to distinguish between who his advisers were pushing him to nominate, so he just rolled the dice and came up with 7s. So what can we expect from the smart Romney? We will go back to tradition. Maybe I am being too hard on W.; he is not stupid and might have just cut through the “practical” advice of people such as Karl Rove. If you read their opinions or even just hear a summary of their decisions, it is easy to determine whether a Supreme Court justice is liberal or conservative. W. might have read the summary, which would have been prepared by diligent legal counsel.

This is not meant to imply that Supreme Court decisions are easy to predict. You would do better rolling dice in most cases. There is always a big element of luck in court decisions, and this is counterintuitive to America’s fundamental court-made principle of stare decisis, the idea that judges must adhere to prior decisions to lend credibility to the court system. The judge can always find an out even if it is nonsense, as in Roe v. Wade.

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