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the national interest

Republican Judge Flips Out at Obama

A tea-party supporter protest outside the US Supreme Court on the third day of oral arguements over the constitutionality of the Patient Protection and Affordable Care Act on March 28, 2012 in Washington, DC. The 26 states challenging the law argue that the Affordable Care Act must be completely repealed if the requirement that all Americans buy health insurance -- known as the "individual mandate" -- is found to be unconstitutional.    AFP PHOTO/MLADEN ANTONOV (Photo credit should read MLADEN ANTONOV/AFP/Getty Images) Possibly a Republican-appointed judge.

President Obama has recently been saying what every liberal legal analyst, and many conservative legal analysts, have been saying for a while: The Affordable Care Act is obviously constitutional, and striking it down would be an act of partisanship by Republican justices rather than a plausible interpretation of the Constitution.

Lots of conservatives have grown alarmed that liberals, including Obama, are trying to intimidate and preemptively delegitimize the Court in the event of an adverse ruling. One such freaked-out conservative is Jerry Smith, who happens to be a Republican-appointed judge:

The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law. …

Smith then became "very stern," the source said, telling the lawyers arguing the case it was not clear to "many of us" whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick — both Republican appointees — remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments yesterday about judges being an "unelected group of people."

Look, this is nuts. Obama is not denying the right of judicial review, or threatening to disobey a ruling. He is expressing a legal analysis. The right has suddenly become hyper-protective of the judiciary’s independence — see Megan McArdle’s snark campaign — but all this garment rending about liberal nastiness is premised on a view about the legal merits of the case. If you accept the right-wing view that the constitutionality of the law is plausibly suspect, then sure, you’re going to be upset that liberals are casting aspersions on the Court. But if you think the challenge is farcical, then you wouldn’t.

Suppose George W. Bush had managed to pass his plan to privatize Social Security, and liberals ginned up a legal challenge that everybody dismissed but gradually made its way to the Supreme Court and got a respectful hearing from a Supreme Court controlled by five Democratic-appointed justices. I suspect conservatives would be a tad upset. Now, obviously conservatives reject this comparison. But the point is that liberal criticism of the Court is perfectly fitting given liberal evaluation of the merits of the case. Conservatives are acting as though they object on principle to criticizing a Court for potentially deciding a divisive political question on implausible legal grounds by a 5-4 ruling that breaks down on partisan lines. I'm sure they don't, and what they actually object to is the liberal view of the case itself.

I’ve argued that the only way to explain the possibility of overturning the law is as an expression of the panic that has consumed conservatives during the Obama era. Smith’s outburst is actually a telling example of that panic. Obama was expressing a view that overturning the law would be morally and intellectually wrong, and Smith read his comments as some kind of lawless declaration of a would-be dictator. Gee, why would liberals be worrying that Republican-appointed justices would allow their paranoid ideological impulses to drive their decisions?

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Photo: MLADEN ANTONOV/AFP