by Nicole Flatow
When Fifth Circuit Judge Jerry Smith asked the Department of Justice for a three-page single-spaced memo defending its support for the long-established principle of judicial review, Attorney General Eric Holder did what was asked and responded.
He refrained from pointing out, as Jeffrey Toobin did, that Smith’s behavior during the hearing on a challenge to the Affordable Care Act was a “disgrace,” or as Orin Kerr did, that it was “highly inappropriate” for Smith to ask the DOJ to defend political comments by President Obama about the Supreme Court’s review of the health care law totally outside of the scope of the record in the case.
But in his dreams [and in The American Prospect], constitutional law professor Garrett Epps envisions a different kind of letter Holder might have sent, in which he refuses to respond on the basis that the Fifth Circuit has absolutely no jurisdiction in this case over the President of the United States:
Dear Judge Smith,
… This letter is a truthful response to this court's order and the issues of jurisdiction and judicial ethics it raised. Because it is truthful, it will never be filed with any court. Nonetheless, I will take this imaginary opportunity to state that the proper response to your order is a regretful refusal to comply on the grounds that it was made in excess of your jurisdiction, that it raises serious issues about your fitness to serve the United States in a position of honor and trust, and that it tends to bring discredit on the federal judiciary.
Epps goes on to explain that the very same decision that established judicial review, Marbury v. Madison, also established that “federal courts are courts of limited jurisdiction” and any attempt to go outside that jurisdiction deprives them of their power.
While presidents are political actors who have criticized the courts since Thomas Jefferson, judges are expected not to act as naked partisans, he explains.