Judicial Review Doesn't Mean What You Think It Means

Last night while I was asleep, highly placed sources whom I cannot identify (because they don’t exist) assured me that Attorney General Eric Holder originally wrote this first draft of a letter he was ordered to submit to Judge Jerry Smith of the Fifth Circuit. The final letter has quite a different tone. But those of us who cherish the rule of law can dream that he might have actually sent Judge Smith the following instead.

Judge Jerry E. Smith
Circuit Judge
Fifth Circuit Court of Appeals

Dear Judge Smith,

Lawyers tell an anecdote about a psychiatrist who finds himself in heaven. St. Peter says, “We’re so glad you’re here, we have a psychiatric emergency!”

The psychiatrist is puzzled. “How can that be?” he asks. “Surely the souls of the blessed are free from all pain and torment. Why would they need a psychiatrist?”

“It’s not the blessed,” says the saint. “It’s God. He has terrible delusions of grandeur—he thinks he’s a federal judge!”

This story came to mind when I learned that on April 3 of this year, you instructed Assistant U.S. Attorney Dana Kaersvang, representing the United States in the case of Physicians Hospitals of America v. Sebelius, to produce a letter from this office reaffirming the adherence of the United States to the doctrine of judicial review. You cited recent remarks by President Obama suggesting that a decision by the United States Supreme Court to invalidate the Patient Protection and Affordable Care Act would represent an “an unprecedented, extraordinary step” that would furnish a “good example” of judicial activism.  

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.

My refusal to respond is based upon the case of Marbury v. Madison, which established the practice of judicial review of federal statutes for constitutionality. The case concerned an unconstitutional attempt to enlarge the subject-matter jurisdiction of a federal court. The Court's decision invalidated § 13 of the Judiciary Act of 1789, which apparently granted the Supreme Court original jurisdiction to issue a writ of mandamus to James Madison, then Secretary of State. Because Art. III § 2 cl. 2 of the Constitution grants the Supreme Court original jurisdiction only in a limited set of proceedings, the Court reasoned, an attempt by Congress to give it original jurisdiction in other proceedings was unconstitutional and void. Marbury reaffirmed that federal courts are courts of limited jurisdiction, and any attempt by them to exercise power over parties and questions not before them is what the common law called coram non judice—an extrajudicial act that deprives them of their judicial power.

Similarly, your order to an employee of the Department of Justice to critique and explain remarks made by the President of the United States was entered in excess of the Court's jurisdiction.

Simply put, at this time you have no jurisdiction over the President of the United States.

The defendant in the case at bar is not a case against the President. It is against the government of the United States, which is defending the constitutionality of an act of Congress enacted pursuant to the procedures set out in Article I, and signed into law by the President pursuant to Article II. Once those acts are completed, the ACA became the law of the land, and any constitutional test against it in any court is against the government itself. Ms. Kaersvang’s client in this action is not the President, it is the United States of America.

For this reason, the President’s remarks are not part of the record. Recently, the head of your branch of government, Chief Justice John Roberts berated a government lawyer who was attempting to discuss matters not in the appellate record. “If they weren’t in the record, I don’t want to hear about them,” the Chief Justice said. “You appreciate that rule, that we don’t consider things that aren’t in the record.”

In Marbury, Chief Justice John Marshall explained that the Supreme Court could exercise no jurisdiction whatever over the President in his political capacity as chief executive: “The province of the Court is solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion. Questions, in their nature political or which are, by the Constitution and laws, submitted to the Executive, can never be made in this court.”

Presidents since Thomas Jefferson have criticized the federal courts. Jefferson pardoned persons who had been duly convicted of violating the Alien and Sedition Act, and in so doing, said, “nothing in the Constitution has given [the courts] a right to decide for the Executive, more than to the Executive to decide for them.” Abraham Lincoln said in his First Inaugural Address, “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

In his ninth Fireside Chat, in March 1937, President Franklin D. Roosevelt charged that “[t]he Court has been acting not as a judicial body, but as a policy-making body. When the Congress has sought to stabilize national agriculture, to improve the conditions of labor, to safeguard business against unfair competition, to protect our national resources, and in many other ways, to serve our clearly national needs, the majority of the Court has been assuming the power to pass on the wisdom of these acts of the Congress - and to approve or disapprove the public policy written into these laws.” The Court was at that moment, as it is now, consider challenges to several important government programs.

 In recent years, Presidents Richard Nixon, Ronald Reagan (who appointed you to the bench), George H.W. Bush, and George W. Bush have harshly criticized the Court for decisions of which they disapproved. There is nothing unusual or improper in political criticism of the courts in general or of the Supreme Court in particular. The United States Supreme Court said as much 70 years ago in the case of Bridges v. California, which held that neither a citizen nor a newspaper could be haled before a court to answer for criticism of its decisions made in a public forum. “The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion,” wrote Justice Hugo Black for the Court. “For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions.” 

Judge Smith, an institution which survived the scorn of Jefferson, Lincoln, and Roosevelt will withstand President Obama's criticism. Abuse of your jurisdiction has the potential to do far more damage to the judiciary than does the President’s commentary. No one seriously asks that judges do their jobs without regard to their underlying political views. But the people have a right to expect that judges will not act as naked partisans. 

You can be forgiven for having forgotten your proper sphere in the constitutional system. You've had a lot of bad examples. Two Justices of the Supreme Court, Justice Clarence Thomas and Justice Antonin Scalia, have openly associated themselves with the President's political enemies. In the recent health-care oral argument, Justice Scalia played by turns the roles of bully and buffoon. Judge Roger Vinson's District Court opinion in the Health Care Cases read like a transcript of a far-right talk-radio show. Judge Henry Hudson of the Eastern District of Virginia heard a challenge to the ACA even though a partisan political consulting firm of which he is part owner had a business relationship with the politician bringing the case. Chief Judge Richard Cebull of the District of Idaho sent out an openly racist email disparaging both President Obama and, remarkably, his mother. He “apologized” by explaining that he had only used racist language because he is “not a fan” of the President: “I didn't send it as racist, although that's what it is. I sent it out because it's anti-Obama.” In the judge’s mind, the intent to show disrespect to the President was acceptable.

Not since the Sedition Act Crisis of 1798 has any segment of the federal judiciary come to occupy a position so clearly defined by unprincipled, lawless allegiance to one political party and open, personalized hostility to the other. Certainly the “activist” courts your political patron criticized never, even in the cases they arguably got wrong, personalized them as a quarrel with the President of the United States.

In sum, Judge Smith, it would be improper for this office to grovel before you. To be a federal judge is a great honor. A judge who responds to the honor by transgressing the limits on his jurisdiction or his role is no longer a judge; he is a thug with a hammer.

Not signed,

Eric Holder

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