Fifth Circuit Order to Obama

[Sean Wilson]

... unless that is a contrived way of speaking. Like when a professor is grading an exam, and you call it "professorial supremacy." Or if I believe the common law to be the highest form of law, and call statutes "legislative supremacy." Or when I just call anything anyone does "attitudes." Or when we use historical materials to learn that a word interpretation is polysemous, and we call that "originalism." To clear up the problems, me might want to drop the feigned way of speaking. 
 
Regards and thanks.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Personal Website: http://seanwilson.org
SSRN papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=596860
Wittgenstein Discussion: http://seanwilson.org/wittgenstein.discussion.html 


________________________________
 From: Lou Fisher <lfisher11 at verizon.net>
To: mschor at suffolk.edu; MGraber at law.umaryland.edu 
Cc: conlawprof at lists.ucla.edu 
Sent: Friday, April 6, 2012 12:22 PM
Subject: Re: Re: Fifth Circuit Order to Obama
 

If we say that Judge Smith "badly confuses judicial review with judicial supremacy," what are our views of President Obama  The Washington Post on April 4, in an editorial, praised Obama for "toning down" his initial remarks about the Supreme Court on Monday.  The next day, the Post says, he "was wise to revise and extend his remarks" in comments to newspaper editors.  In this second attempt, says the Post, "Mr. Obama was more careful in the details and tone of his critique."  Here is the revised statement by Obama:

"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 . . . "  

Sounds like judicial supremacy to me.  Surely Obama is incorrect when he says the Court has the "final say" on our laws.  If the Court interprets a statute, as it did in the Lily Ledbetter case, Congress is always at liberty to rewrite the law, which is what it did.  This kind of "statutory reversal" is done frequently with no objections from the Court.  Does the Court really have the "final say" on the Constitution?  I don't think so, but if that is Obama's position, I can't imagine why at a state of the union address he should criticize Citizens United.  He should announce that the Court has the final say and all of us have to respect it.

I don't recommend another revise and extend by Obama.

Lou 

 
 On 04/06/12, Miguel Schor<mschor at suffolk.edu> wrote:
 
Mark is of course quite right that criticism of the Supreme Court has been going on since the early days of the Republic.  What is unprecedented is a judge asking the President through the DOJ to kowtow to the judiciary.  J. Smith badly confuses judicial review with judicial supremacy.  Criticism of the judiciary goes hand in hand with judicial review in a constitutional democracy but criticism would, of course, be out of bounds if we lived in a constitutional theocracy.   One of the instructive aspects of this episode is that it highlights an argument that I have made elsewhere that judicial supremacy facilitates political polarization.  J. Smith's order simply deepens mistrust between political elites and helps tear at the social fabric needed for democracy to work tolerably well.  With the usual apologies for a shameless self-promotion, the article is entitled "Constitutional Dialogue and Judicial Supremacy" and is available on SSRN.

Miguel 


On Apr 6, 2012, at 10:06 AM, Graber, Mark wrote:

> Perhaps the more general observation is that political figures, including presidents, have made these and related comments all the time in non-judiical fora, without having judges intervene in the manner of Judge Smith.
> 
> 
> 
> ________________________________
> From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of John Bickers [bickersj1 at nku.edu]
> Sent: Friday, April 06, 2012 11:02 AM
> To: Edlin, Douglas; Marty Lederman; Chambers, Hank; conlawprof at lists.ucla.edu
> Subject: RE: Fifth Circuit Order to Obama
> 
> I really dont wish to be annoying and belabor a point, but this is a sincere question on my part.  Prof. Edlin observes:
> 
> 
> 
> 2.  If the President had said on Monday what he said on Tuesday, we wouldn't be having this conversation.  If the President's comments were as clear on Monday as people say they were, he would not have needed to clarify them on Tuesday.  If the President's comments were as clear on Monday as people say they were, other reasonable people would not have interpreted them as being imprecise or improvident.
> 
> 
> 
> I am one of those people who think the Monday comments are not particularly controversial.  As a reminder, here is the only Monday quote I can find that refers to the power of the Federal Judiciary:
> 
> 
> 
> "And I'd just remind conservative commentators that for years what weve 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 Im pretty confident that this Court will recognize that and not take that step."
> 
> 
> 
> Is there another comment that I just missed?  I know much of the secondary source commentary from the pundits has been along the lines suggested by Prof. Edlin.  I assumed that was simply the sort of overwrought characterization of people on television who are paid to characterize, and to be overwrought.  If I missed a comment, I wish someone would share it.  If it is this comment that shocks us, I confess that I am a little nonplussed.
> 
> 
> John M. Bickers
> Salmon P. Chase College of Law
> Northern Kentucky University
> 
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