The Anti-Scalia Uprising


I’m not the only one who has noticed that Antonin Scalia has become the Supreme Court’s crazy uncle.

As I wrote here yesterday, Scalia’s dissent in the Court’s Monday ruling striking down most of Arizona’s anti-immigrant law was bizarre beyond belief—arrogating to Arizona a degree of sovereignty in border (and foreign, and military) policy that law and custom restrict to nations. His willingness to let Arizona make its own foreign policy was also in sharp contrast to his refusal to grant Montana the right to put controls on campaign spending in its state elections—a decision he joined on the same day he issued his Arizona dissent. 

I largely eschewed Scalia’s most egregious conduct on Monday—his rant against President Obama’s recent order forbidding the deportation of young immigrants brought here without documentation as children, which Scalia delivered from the bench in reading his Arizona dissent, notwithstanding that Obama’s order had nothing to do with the case the court was deciding. But, I’m happy to say, my colleagues at The Washington Post have hammered Scalia for his irrepressible partisanship. In his column in tomorrow’s paper, E.J. Dionne demands that Scalia resign. E.J. cites several instances in which Scalia gave speeches that pre-judged issues that might or did in fact come before the court. He recalls Scalia’s hunting vacation with then-sitting (fortunately for Scalia, not shooting) Vice-President Dick Cheney. And he quotes a passage from Scalia’s Arizona dissent that could have come straight from Rush Limbaugh, Jan Brewer, Joe Arpaio, or their nativist ilk:

“Arizona bears the brunt of the country’s illegal immigration problem,” Scalia wrote. “Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are simply unwilling to do so.” 

This is a fine political speech, as E.J. notes, unencumbered by the constraints of judicial temperament or, for that matter, truth. Dionne goes on to write:

As it happens, Obama has stepped up immigration enforcement. But if the 76-year-old justice wants to dispute this, he is perfectly free as a citizen to join the political fray and take on the president. But he cannot be a blatantly political actor and a justice at the same time.

Now, E.J. is a close friend, and I agree with him about 97 percent of the time. We often find ourselves at odds, however, with the Post’s editorial board on a host of issues. Apparently, though, not on Scalia. In an editorial also for tomorrow’s paper that they put online this afternoon, the editors of the Post write that Scalia’s “lapses of judicial temperament … endanger not only his jurisprudential legacy but the legitimacy of the high court.” Citing his outburst in Arizona, they also recall his “bashing 'a law-profession culture, that has largely signed on to the so-called homosexual agenda' in a written dissent.” 

E.J. and the editors rightly note that Scalia would make a fine right-wing columnist, and this is a judgment I affirm. And like E.J., I’m more than willing to welcome Scalia to my professional niche, in return for which, he need only get off a bench where his presence grows more outlandishly political and just plain woollier with each passing day. 

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