The controversy goes back to Monday, when President Obama made his first lengthy public remarks about the oral arguments, and suggested it would be "unprecedented" for the court to strike down the health care law. Conservatives reacted harshly -- of course there's precedent for the court to strike down laws they deem unconstitutional. Obama, they determined, was gearing up to take on the judiciary in the event of an adverse ruling on his signature domestic accomplishment.
On Tuesday, Obama revised and extended his remarks. "We have not seen a court overturn a law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce -- a law like that has not been overturned at least since Lochner," Obama said. "So we're going back to the '30s, pre-New Deal."
"The point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it's precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this," Obama added.
Word apparently didn't reach the Fifth Circuit Court of Appeals in time.
Appellate Court Judge Jerry Smith, presiding over a three-judge panel hearing a separate challenge to the health care law, lit into an Obama administration attorney.
"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?" Smith asked. "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."
Then he assigned the Justice Department homework. "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."
This was a bridge too far.
"The president was being cute in his statements," Fitzpatrick said. "I don't think he really believes courts ought to defer to the political branches. But the president is a politician. He's allowed to be cute. Federal judges are supposed to be above that. I suppose that's what we get for giving them life tenure."
"Clearly Obama pissed off Smith through yesterday's sloppy talk," said one Republican lawyer in Washington who reviewed the exchange. "What he's doing here is a bit aggressive insofar as it's not like he learns anything from the briefing. It's quasi-punitive, but it's some lawyer in the civil division who is working on this right now, not even a White House counsel lawyer, so it's punitive in an ineffectual way. ... Obama screwed up [Monday] by speaking sloppily, but substantively he fixed it [Tuesday]. I'm quite confident my side will overplay its hand here."
Many conservatives and Republicans were unnerved by Obama's initial statement, but even among them the consensus is that it's not the judges' job to punch back politically or defend its own turf.
After listening to audio posted by the court, Orin Kerr -- a professor at George Washington University Law School and former clerk to Justice Anthony Kennedy -- concluded, "[t]he order still strikes me as highly inappropriate: The DOJ lawyer was quite clear as to DOJ's position, and lower court judges deciding cases based on briefing and argument should not be going outside the record to come up with assignments to litigants based on press releases by politicians in such politically charged matters. It just makes the judges look like political actors themselves, which doesn't help anyone."
Republican leaders in Washington have been silent on the altercation. That could change, of course, but if it doesn't, it's probably because it's a perfect example of the overreach Obama was warning against.