said no such thing and judicial supremacy was not sure fully embraced in the years after marbury was decided the justices in cooper were not reporting a fact so much as trying to manufacture one and now the supreme court increasingly all the federal courts are taking out of themselves a power to strike down laws that they don't like often for political reasons and claiming that they have that power most exhibit recent example is you know being called out on this actually was when president obama said this. ultimately i'm 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. republican judge jerry smith on the first fifth circuit court freaked out when president obama said that in effect pointing out that the judges in on the supreme court are not elected a lowly lawyer for the justice department before his court and smith demanded that this guy produce within forty eight hours a letter at least three pages long single spaced saying the presiden

he didn't mention marbury because he's anwar of it. but the next try at that was the courthouse overruled the economic law like this, since the 30s, which is also not true. they did it in 1995 and they did in 2000 and both the violence against women act which by the way the case was brought to the supreme court by my law firm, got it overturned because congress didn't have the constitutional authority to pass it. and the clinton administration argued this is an economic violence. and the the gun free school zone act was declared unconstitutional and both passed you bed customers law claiming violent crime and violence against women affects the economy because of insurance costs. and mean similar arguments being made to defend obama case. they said it was an economic regulation and the supreme court turned it down. >> the president weighed in augusta, the administration, and they don't have women as members at the golf club. >> the new york times might be delighted in. >> what what he has done in a series of commence he weighed in on th

and she promptly responded, yes, marbury versus madison. and then they fired off the letter to the justice. you have the president bullying the federal courts, supreme courts, and you have the federal courts bullying back. >> i don't see it bullying back, but it is defiant. this is not the first time the president has made the united states supreme court a political whipping boy. remember it was not too far south of here in the united states capitol during the state of the union address with the supreme court stuck in front of him, mute, that he attacked them over the citizens united decision to say things patently not true. we will now have a flood of foreign money. well, the tillman act prohibits foreign contributions. it has nothing to do with it. and he excoriated the court sitting in front of him in a undignifying way. >> well, he was at a budget speech. and he insulted the audience. >> a different line. >> but i got that. he's rude. i got that. and he picked this fight. i got that. but the problem is that we've got to do something to

. >> that was established by marbury v.ison back in the early 1800s and ever since then no serious legal scholar in 175 years has questioned whether or not the supreme court can throw out a law that is unconstitutional. >> jon: yeah, we all have wikipedia. (laughter) that's just what conservatives believe. the judicial branch's job is to determine what law is unconstitutional and throw them out. that's what conservatives believe. well... >> california along with so many other states defining traditionally what marriage is and to see that third branch of government underdoing the will of the people it's frustrating. >> jon: that's different that was a law banning gay marriage because they didn't want judges to interveer. liberals are consistent that they don't want judges to interfere. >> it's been a true. they courts have the authority to say what the law is. even to invalidate statutes enacted by the elected branches of government when they conflict with the constitution. >> jon: right, but unless the law is with regard to

marbury versus madison, it's a 209 year ruling and it's there for a ruling. if you really -- if businesses want to be protected, they need to go to congress. that is the job of congress. if those laws that congress puts in place, economic regulations, are unconstitutional, then is goes to the supreme court. a strong supreme court is one that protects the constitution, not businesses. >> dennis, people are saying, look, the supreme court is not a chamber of commerce. do you think it is? >> you know what, the supreme court is there to make sure that politicians don't screw it up. and that's what politicians keep doing. you know, let's think about this. it was a law that stopped companies from being able to exercise their free speech rights and make campaign contributions. it was the u.s. supreme court issued rulings that said you can't stop a company from doing that and it was our president obama who criticized the u.s. supreme court at the state of the union address right as they sat there in the front row. something that no modern president i don't think had

situation, he was a constitutional law professor of course he understands marbury versus madison and the media has not done a good job about the fact that the republican have their hair on fire about this, made the exact comments for judicial activism in the less. >> no, no, you're misinterpreting what judicial activism is. the president this is a narrative who he is. it's not the first time he's waged war on the supreme court and 2010 state of the union address we have an unreal spectacle the head of the executive branch egging on the legislative branch to diss the judicial branch as they sat there. the question should be after the decades of the left accusing republicans of imperial presidency, we have an actual imperial presidency let's see the press research that. >> jon: time for a break. up next, mitt romney sweeps three states and shows no signs of stopping and the media are right there with him. >> mitt romney racks up three more wins, riding a big wave of momentum with a positive push from the media toward the g.o.p. nomination. but should they dismiss rick santorum entirely

courts have the final say. >> reporter: well, it was the famous marbury v. madison case that firmly established the right of judicial review by federal courts, especially the supreme court. something every law student learns. but the president might flunk con law now if you listen to his former law professor at harvard, liewrns tribe. tribe says his famous student, obviously, misspoke. quote: the president didn't say what he meant. i don't think anything was gained by making those comments, and i don't think any harm was done except by public confusion. look, the public was confused, and maybe the president. the fifth circuit court of appeals was down right miffed, ordering the department of justice to submit that three-page document affirming the federal court's authority to strike down unconstitutional laws. indeed, the supreme court has done it more than 160 times. now, the white house continues including today to try to walk back the president's unprecedented remarks saying, well, he was just referring to cases involving the commerce clause, but when it

. >> somewhat ironic given their extreme position now on how supportive they are of marbury madison. >> which at the time they said was wrongly decided and said it's not clear in the constitution about the independents of the usually in the constitution. >> the same people. >> the very thing that they were complaining about before of course, they now are i accusing the president of not goge what marbury versus madison is it's a very interesting moment in history. >> inconsistent to say it nicely. >> yes. consistently inconsistent. >> you've made comments about how important it is to have clean elections. talk about that, especially in the context of this election. >> when you ask what we would do right at the beginning of a new congress, first we have to win and then we have to do our -- the jobs agenda. i honestly believe we're not going to be to have the policy agenda that we want to have unless we he think cha the politics. we have to reduce the role of money in campaigns. the supreme court decision of citizens united is very undermining of our democracy. our founders had in mind

should are the ones who should be making these laws not an elected judges unfortunately ever since marbury vs madison the court case and you know three with the supreme court took on to itself the power to over rule laws made by congress and signed by the president the judiciary has become the most powerful branch and government has a three justice marshall chief justice marshall wrote in his decision it isn't fatted little province and duty of the judicial department to say what the law is. that power is not anywhere to be found in the constitution and that point on courts have add to our in america to strike down laws passed by passed by both congress and the president and this is exactly what president obama cautioned the court against doing yesterday. ultimately i'm 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 just on that other nations don't operate this way judicial review in other nations in many other nations doesn't exist and in some

so of broadsided and she said marbury versus madison so the judge had his answer.e didn't have to go to this. >> right. >> so this shows what the president said the other day got under the judge's skin and he fired back. >> it did and he referenced that. it wasn't just pull out of thin air. he did say we are concern about things the president has said the last few days. we want to make sure he agrees with us on judicial review and the courts have the right to look at laws passed by congress and we have the authority to strike them down. it was a very specific, you know, reference right to the president. >> as you notice, the attorney general said at the end of the -- the president's remarks were fully consistent with the principles described herein. he's covering for the president. i think most people conclude the president was dead wrong with what he said on monday. president then tried to get it down but he was wrong and the attorney general is being a dedicated employee and giving him cover. >> he is. i talk to people who support the law, those who don't, and th

madison and other cases before marbury vs. madison.ay 32% of democrats have less of an opinion of the supreme court after the obamacare argument, 14% of republicans have lesser an opinion and so they're saying this is our pressure point. and so they'll say oh, yes, we give all due credit to the united states supreme court and our great constitutional history. they have a wonderful power but it's a power to be exercised with restraint. >> it will be interesting, peter, to see whether or not he does make political points in his three-page single spaced argument. do you think that the white house thought this through going in? like let's not talk about the economy. let's talk about -- we think health care is going down so we're going to start blaming the supreme court. we're going to start laying that idea into people's minds and this thing has just blown up in their face and now eric holder has to find something. give me another law book. >> any loyal american has to do. you have to give faith to the motives of the president but based up

she is quick to say marbury versus madison. you learned it, i learned it in law school the first week. she was ready for that herself. it's pretty basic. she answered the question but in spite of answered the question fired off this letter to her boss. it's at the justice department. directed to her but goes to justice department. >> that is formally the court considers this in order and it's reminding them of the deadline. it's interesting, it doesn't mentioned the content of what was asked for. the judge was clear in court. but this sealed up the content. you get the audience and you know what they discussed in the courtroom. this is direct. it's an order to her. now the justice department has to comply or basically in my understanding he can hold them in contempt. >> what is fascinating, first of all, the judge doesn't need the information. she answered the question. it really should be over at that point. but what id indicates to me is the president's remarks yesterday got under the skin of this particular judge. directed t

he never said marbury versus madison, it was a threat. >> holder also said he is confident that health care reform will stand constitutional muster and, yesterday, white house press secretary carney defended the president, as well, saying the president's comments represent an unremarkable observation about 80 years of supreme court left and it was the reverse of intimidation. back to you. >> thank you, peter. >> so, and now who is talking about that this morning. former presidential candidate herman cain said voters should not be surprised the president is questioning the sovereignty of the supreme court on hannity last night. >> outrageous. the same thing. they act as if we don't have three branches of government. remember before they took office jarrett made the statement and my good friend and your good friend pointed out that he said she made the statement, we will be ready to rule from day one. they are not ruling. not rulers. they are supposed to govern but they see themselves, he sees themselves as a ruler of this nation. this is not a nation that is ruled. this is nation that w

she is quick to say marbury versus madison. you learned it, i learned it in law school the first week. she was ready for that herself. it's pretty basic. she answered the question but in spite of answered the question fired off this letter to her boss. it's at the justice department. directed to her but goes to justice department. >> that is formally the court considers this in order and it's reminding them of the deadline. it's interesting, it doesn't mentioned the content of what was asked for. the judge was clear in court. but this sealed up the content. you get the audience and you know what they discussed in the courtroom. this is direct. it's an order to her. now the justice department has to comply or basically in my understanding he can hold them in contempt. >> what is fascinating, first of all, the judge doesn't need the information. she answered the question. it really should be over at that point. but what id indicates to me is the president's remarks yesterday got under the skin of this particular judge. directed t

nothing obama said conflicts with marbury versus madison. of course, the supreme court has the right to strike down this law, but what the president was saying he doesn't think the supreme court should exercise that. >> he went a little bit further and just to be precise i'll look at the words. he said it would be unprecedented for the court to overturn the law. >> what would be so unprecedented about the supreme court right now overturning the health care reform law, given 200 years of the supreme court doing these kinds of things. >> it would be unprecedented for the supreme court to overturn the central economic legislation of -- of -- of president and a congress. in the 1930s the supreme court did something almost this dramatic in overturning some of the new deal and then in 1937 they went back on this, but it is certainly extremely unprecedented for an act of this magnitude to be declared unconstitutional. that doesn't mean that the supreme court can't do it. it doesn't even mean that they shouldn't do it. but the fact that it is unprec

. >> since marbury versus madison they have the authority to overturn laws. no one is challenging that. what's unprecedented in the president's opinion is a ruling saying this law is unconstitutional because the president believes the law, the precedent of the court itself justify what congress did in passing the law. i don't see how you could be so willfully, you know, looking for a fight to say that the president was somehow defying what the supreme court has historically done here. >> yesterday right here in the situation room, you remember this, jeff, you accused that appeals court judge, fifth circuit, of what you called a judicial hissy fit by demanding this three-page letter. eric holder, though, the attorney general formally responded with a very serious legal opinion. what do you make of the response and what do you make now that you've had a chance to digest this whole exercise between this fifth circuit court of appeals judge and the attorney general of the united states? >> well, i thought over what i said to you and then i decided to say it again

the fact and constitutional law professor, he understand marbury versus madison and the media hasn'tone a good job that republicans who now have their hair on fire about this have made the exact same comments about judicial activism. yes, they have. >> you are misinterpreting what judicial ago virtually really is. >> this is an existing narrative remember 2010 state of the union address we have unreal spectacle egging on the legislative branch to the judicial branch as they sat right there. so the question should be, after all of these decades of the left accusing republicans of imperial presidency. we have an actual imperial presidency. let's see the press research that. >> up next, mitt romney sweeps three states. shows no signs of stopping and the media is right there with him. >> mitt romney racks up three more wins riding a big wave of momentum with a positive push from the media toward the g.o.p. nomination but should they dismiss rick santorum entirely? plus, sarah palin holds her own against the many stream media on the today show. how did that go over with the press? answer

she is quick to say marbury versus madison. you learned it, i learned it in law school the first week. she was ready for that herself. it's pretty basic. she answered the question but in spite of answered the question fired off this letter to her boss. it's at the justice department. directed to her but goes to justice department. >> that is formally the court considers this in order and it's reminding them of the deadline. it's interesting, it doesn't mentioned the content of what was asked for. the judge was clear in court. but this sealed up the content. you get the audience and you know what they discussed in the courtroom. this is direct. it's an order to her. now the justice department has to comply or basically in my understanding he can hold them in contempt. >> what is fascinating, first of all, the judge doesn't need the information. she answered the question. it really should be over at that point. but what id indicates to me is the president's remarks yesterday got under the skin of this particular judge. directed t

talked about, really, really -- i don't know if the president knows there was a decision in 1803 marbury versus madison and we had a chief justice john marshall who said a law repugnant to the constitution is void as you deal with the principle of judicial review. these were the concepts yesterday about the supreme court dealing with the issue of healthcare. >> for year what is we heard is the problem on the bench is judicial activism of lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. well, a good example and i'm confident the court will recognize that and not take that step. >> astonishing to hear that. the president is a constitutional scholar. challenging our constitutional form of government. he looks like, sounds like he is bullying it, attempting to intimidate it and subvert it. coming from the president, a constitutional scholar that was an amazing thing to hear. today you have a federal judge saying you didn't mean to bully and intimidate, did you? i want an explanation in writing, three pages, single pace. o

that was the holding in marbury versus madison, the first great case from the supreme court.nk you could contend that the supreme court would be judicially active if it supported this stretching of the commerce clause as the congress did in the obamacare legislation. i mean, the court in effect was asking the lig litigants, how far can this be stretchd? is there no limit? i think the court would be imposing judicial restraint on the congress, on the federal government fit drew a line here. the court has never been presented with this case before where congress has forced the citizens to buy a product so it could be regulated. and so the court didn't ask for this case fwurk came to the court and it has to make a decision, one way or the other. it it is not being judicially active if it says, whoa, have gone too far. i'm sorry, the other thing is that the extraordinary step of overturning a law that was passed by a strong majority of a democratally elected congress. number 1, it was not a strong majority. in fact, it was really close. number 2, it was a democratically elected c