Fifth Circuit Order to Obama

John Bickers bickersj1 at
Thu Apr 5 14:15:25 PDT 2012

Perhaps I am missing something.  What President Obama said on Monday was-

"Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.

Q You say it's not an abstract conversation. Do you have contingency plans?

PRESIDENT OBAMA: I'm sorry. As I said, we are confident that this will be over -- that this will be upheld. I’m confident that this will be upheld because it should be upheld. And, again, that’s not just my opinion; that’s the opinion of a whole lot of constitutional law professors and academics and judges and lawyers who have examined this law, even if they're not particularly sympathetic to this particular piece of legislation or my presidency."

I don't see how that calls judicial review into question.  It is rather like a manager going into Game 6 of the World Series while up 3-2 being asked "what will you do if you lose?" and responding "We aren't going to lose."  Of course, one could read that as "aha! the manager plans to cheat" but I think the better reading is one about leadership and projecting confidence.

For comparison, here are Pres. Bush's comments to the Federalist Society in 2007:

"When the Founders drafted the Constitution, they had a clear understanding of tyranny. They also had a clear idea about how to prevent it from ever taking root in America. Their solution was to separate the government's powers into three co-equal branches: the executive, the legislature, and the judiciary. Each of these branches plays a vital role in our free society. Each serves as a check on the others. And to preserve our liberty, each must meet its responsibilities -- and resist the temptation to encroach on the powers the Constitution accords to others. For the judiciary, resisting this temptation is particularly important, because it's the only branch that is unelected and whose officers serve for life. Unfortunately, some judges give in to temptation and make law instead of interpreting. Such judicial lawlessness is a threat to our democracy -- and it needs to stop."

Neither of these statements shock me, and neither goes anywhere near as far as Pres. Lincoln went in his first inaugural.  Is there something I am failing to see?

But I do agree with Prof. Edlin that no ethics complaints are in order.

John M. Bickers

Salmon P. Chase College of Law

Northern Kentucky University

From: conlawprof-bounces at [conlawprof-bounces at] on behalf of Doug Edlin [edlind at]
Sent: Thursday, April 05, 2012 4:49 PM
To: conlawprof at
Subject: Re: Fifth Circuit Order to Obama


I suspect I may be alone on this, but I actually don't think Judge Smith was out of line.  The President's comments on Monday (not the clarifying remarks he offered on Tuesday) are what Judge Smith was responding to at Tuesday's oral argument.  Those comments can very fairly be taken as Judge Smith took them.  Of course, no one believes that the President meant to call the power of judicial review into question. But that is what he said.  For what it's worth, I was pretty shocked when I read his comments Monday.  So a Fifth Circuit judge questioning the government's attorney about the government's position, and requesting what was essentially a letter brief formally explaining the government's position, in a case involving the same piece of legislation the President's comments concerned, which may result in a determination of that legislation's constitutionality by the Fifth Circuit, doesn't seem out of bounds.  I can see why a federal judge might be concerned by the President's comments.  Judge Smith obviously was.  And he responded in pretty much the only way that a federal judge can.

I know I've answered way more than you asked.  In response to your question, I don't see what the ethics complaint could be.



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