Tribe Slams Texas Judge Who Demanded Letter on Judicial Review

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Written By admin at Friday, April 6th, 2012

Laurence Tribe
Laurence Tribe

Harvard Law School professor Laurence Tribe, writing at, said “there has never been any doubt” that his former student, President Barack Obama, accepts the Supreme Court’s authority to strike down the Affordable Care Act.

Obama has been widely criticized for remarking earlier this week that the Supreme Court would be taking an “unprecedented, extraordinary step” if it jettisoned his signature legislative achievement. The president later clarified his comments, saying he meant that the court has rarely struck down a law passed by Congress on an economic issue.

Tribe told the WSJ earlier this week that President Obama simply “misspoke.” In his column Friday, Tribe said the president’s comments were distorted and exaggerated:

The “unprecedented, extraordinary” step he noted the justices would be taking if they were to overturn the Affordable Care Act was, of course, not the step of exercising judicial review, as the court has done ever since Marbury v. Madison in 1803, but the step of second-guessing congressional judgments about how best to regulate a vast segment of the national economy. No one in the world — certainly none of the justices — can have been surprised to learn that Obama believes his signature domestic achievement fully complies with the Constitution and ought to be upheld — or that the Supreme Court has a decades-old tradition of treading lightly when major regulations of interstate commerce come before it.

Tribe said Obama meant no disrespect to the court. He then laid into Judge Jerry Smith of the U.S. Court of Appeals for the Fifth Circuit who, citing Obama’s remarks, ordered the Justice Department to submit a three-page, single-spaced letter describing its position on judicial review. The move was seen by Obama supporters as a not-so-subtle ploy to have the attorney general go on record saying the president was wrong. Supporters of Judge Smith say he took Obama’s comments seriously and issued his order out of genuine concern.

Tribe is firmly in the former camp, describing Smith’s actions as “a shocking misuse of power.”

Smith’s gratuitous order is little more than a thinly concealed insult to the president, the Justice Department and the administration. It constitutes a shocking departure from norms of judicial behavior. While such partisan bickering might be expected from the minority leader of the Senate or from commentators like Rush Limbaugh, who drew upon Obama’s remarks in yet another entry in their relentless attacks on the president, it is hardly to be expected of a federal judge

An assistant to Judge Smith said he would not comment on the order.

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