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 isobviously 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.