I Won't Keep Saying Stupid Shit. I Won't Keep Saying Stupid Shit. I Won't Keep Saying Stupid Shit. I Won't Keep Saying Stupid Shit. UPDATED

High on the list of things I didn't plan to be writing about was Obama's world-class stupid claim on Saturday (see here) that courts have never found laws to be unconstitutional.

Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.

They do it all the time.  Nothing new about that.  The power of judicial review is nowhere mentioned in the Constitution, but it was asserted forcefully in 1803 in Marbury v. Madison, and while various folks have carped about it and claimed it to be unconstitutional ever since, it's also well-entrenched, clearly-settled law that has been applied for now over 200 years.
Obama was not just wrong.  He was egregiously wrong.
But he's a politician and he was making a political argument, however ill conceived.  These things happen and we go on with our lives while the President takes a hit for being an idiot and lying to the American people and maybe prejudicing SCOTUS against the Affordable Care Act just to show him.  Bad move all around.  Ho hum.  Nothing to blog about there.
Except then the Judge Jerry Smith spoke up.
Smith sits on the 5th Circuit Court of Appeals, and was part of a panel yesterday hearing another of the numerous cases challenging the ACA, Physicians Hospital of America v. Kathleen Sibelius, Secretary.  And he was pissed.
Of course, he couldn't take it out on Obama.  So he took it out on the closest person he could get to, Dana Lydia Kaersvang, a lawyer with the Department of Justice who was there to defend the law, spanking her and demanding a note from Mom and Dad.  A long one.
Here it is, thanks to the Wall Street Journal blog which apparently had part of the oral argument (you can find it and listen here) transcribed.

Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?
Kaersvang: Yes, your honor. Of course, there would need to be a severability analysis, but yes.
Smith: I’m referring to statements by the president in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress.
That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.
Kaersvang: Marbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no –
Smith: I would like to have from you by noon on Thursday…a letter stating what is the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.

Of course, it doesn't really matter to the Fifth Circuit's resolution of the case whether Kaersvang  believes in judicial review. Or whether Eric Holder does.  Or whether DOJ as an institution does. Or whether Obama does.  Smith's opening question is the sort that appellate judges too often ask that don't really matter.  It's a bit of pettiness of the sort appellate lawyers come to expect from time to time.  But the demand for a note?  That's simply abusive, an act of petty tyranny.
And at length? And with specifics?  What the fuck will they write?
Dear Judge Smith:

We believe that Marbury v. Madison and the power of judicial review represent the settled law of the United States and any statements by the President to the contrary are either misunderstood or misspoken or simply wrong.
We believe that Marbury v. Madison and the power of judicial review represent the settled law of the United States and any statements by the President to the contrary are either misunderstood or misspoken or simply wrong.
We believe that Marbury v. Madison and the power of judicial review represent the settled law of the United States and any statements by the President to the contrary are either misunderstood or misspoken or simply wrong.
We believe that Marbury v. Madison and the power of judicial review represent the settled law of the United States and any statements by the President to the contrary are either misunderstood or misspoken or simply wrong.

And so on for 3 typewritten pages?
Or perhaps this:

Dear Judge Smith:
Asking the Department of Justice of the United States of America to explain in detail and in three, single-spaced, typewritten pages (May we use a large font? And what size must the pages be?) to explain in detail why the decision of the Supreme Court of the United States in 1803 in Marbury v. Madison is a decision of the Supreme Court of the United States and is therefore the law of the United States of America unless it is someday overruled by another decision of the Supreme Court of the United States or by an amendment to the Constitution of the United States of America is a really good idea.
The Department of Justice of the United States of America believes that it is important to explain that the decision of the Supreme Court of the United States in 1803 in Marbury v. Madison is a decision of the Supreme Court of the United States and is therefore the law of the United States of America unless it is someday overruled by another decision of the Supreme Court of the United States or by an amendment to the Constitution of the United States of America.

And so on for 3 typewritten pages?
I mean, what the hell are they gonna say?  And why?
Judges get to abuse lawyers.  The power comes with the robe.  Ah but as Uncle Ben said in the movie,*

Which is maybe what Kaersvang should have said.  Respectfully.
On the other hand, Obama really should be forced to write on the blackboard 100 times.

 UPDATE

See, also, Ken's post at Popehat.
-----------------
*The comic book original is by the narrator, "[W]ith great power there must also come - great responsibility."  Of course, Stan Lee took the idea and modified the words only slightly from elsewhere.