As far as history goes, the most enduring thing to come out of President Barack Obama's combustible remarks this week about the Supreme Court and the Affordable Care Act is likely the sua sponte court order issued in person on Tuesday by Fifth Circuit Court of Appeals Judge Jerry Smith. Angered by the president's remarks about constitutional precedent and judicial limits, the Reagan appointee interrupted oral arguments in an unrelated health care case to order the Justice Department to prepare for his edification a three-page, single-spaced memo detailing the government's views about the judicial power to declare laws void.
Instantly, Judge Smith was a hero to a cause. He was credited for standing up to the president and for standing up for the concept of an independent judiciary. It didn't matter that no other federal judge dared publicly follow him into the breach. It didn't matter that the president immediately backtracked on his comments. And it didn't matter that Judge Smith already knew the answer to the question he forced the Justice Department to sketch out. No, Judge Smith's well-timed temper tantrum made him a symbol of lone courage -- standing up for a downtrodden judiciary being picked on by an overbearing executive branch.
Judge Smith sounded the alarm over judicial independence -- see how powerful a federal judge can be? He challenged the White House and Justice Department. And from a seat in his own courtroom he sure did go out of his way to bully those federal lawyers who had nothing to do with what the president had said. But you'll forgive me if I don't anoint him quite yet. Because you know who Judge Smith didn't stand up for? He never, even just once, stood up for U.S. District Judge Fred Biery, a fellow Texan, a fellow member of the judiciary, who for the past 10 months has been the target of vicious conservative political attacks.
Justice Anthony Kennedy will be fine without Judge Smith's cavalry charge. So will Chief Justice John Roberts. The Supreme Court has plenty of other defenders. And what President Obama said about the court, and about the Constitution, is downright timid compared with what some of his predecessors have said about the justices. But what Judge Biery has endured this past few months is outrageous. And you would think that an appellate judge who was so quick to scold the White House would have been equally willing to scold anyone who would disrespect one of his colleagues, and judicial independence itself, that way.
JUDGE BIERY AND JUDGE SMITH
The story beings on June 1, 2011. On that day, Judge Biery issued a four-page order enjoining the Medina Valley Independent School District from including prayers at a high school graduation ceremony scheduled for three days later, on June 4. In his brief opinion, Judge Biery cited 11 federal cases for the proposition that the plaintiffs who had sued to stop the prayers were likely to succeed on the merits of their claim under the establishment clause of the First Amendment. "This Court is bound to follow case law of the Supreme Court and the Fifth Circuit Court of Appeals," Judge Biery wrote.
The order was immediately appealed to the Fifth Circuit. Judge Smith was one of the three judges on the panel which reviewed the appeal. In a per curiam opinion, and without citing a single case as precedent, the appellate court wrote this:
On this incomplete record at this preliminary injunction stage of the case, we are not persuaded that plaintiffs have shown that they are substantially likely to prevail on the merits, particularly on the issue that the individual prayers or other remarks to be given by students at graduation are, in fact, school-sponsored. We also observe in particular that the plaintiffs' motion may be rooted at least in part in circumstances that no longer exist. For example, the school has apparently abandoned including the words "invocation" and "benediction" on the program. The motion also did not expressly address the involvement of the valedictorian in the graduation ceremony.
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