Now it’s always difficult to beat a federal judge for sheer pomposity so in a sense there’s nothing particularly surprising about this sort of thing. But reading His Honor’s stern inquisition of the unfortunate DOJ lawyer — who I imagine was taken aback by the need to take time from her argument to cite Marbury v. Madison — brought to mind the following little story: A very distinguished professor of constitutional law — a man widely viewed as a conservative at least in legal academic circles — was asked recently to write an essay for a prominent conservative opinion magazine on some current legal controversies, including Citizens United decision and the ongoing litigation over same-sex marriage rights. He used the essay as an occasion to reiterate certain fundamental criticisms of the culture of judicial review, and in particular the mental habits that culture inculcates in judges.
The essay had gone through the editorial process and was in press when the Editor in Chief of the publication decided not to run the piece. Needless to say the author was both surprised and annoyed by this reversal, and had several conversations with the EIC about it. In sum, the EIC explained that it was now the policy — or what I believe in another time and place would have been referred to as “the line” — of the publication that it should not be encouraging basic criticisms of judicial review as a legal practice and cultural phenomenon “at this time.” In the course of these conversations it became very clear to the author that “at this time” meant “when this practice has once again become on the whole beneficial to the political goals of American conservatives.”
BTW the author is one of maybe five people in legal academia who is genuinely critical of judicial review without regard to outcomes in particular cases.
Stephanie -- DOJ's reply to Judges Smith, Garza and Southwick should read, in its entirety, "Oh fuck off." -- they have exactly zero authority or power to make or enforce any such demand