Justice Scalia’s Odd Dissent In Arizona v. United States

Justice Scaiia's dissent in Arizona v. United States included many odd forays into areas that had nothing to do with the case before him.

In the days since Monday’s release of the Supreme Court’s opinion in Arizona v. United States, there has been much commentary, mostly from the left, about Justice Antonin Scalia’s blistering dissent in the case that some are saying was overly, perhaps inappropriately political:

WASHINGTON — Justice Antonin Scalia has never been shy about saying what he thinks and never reluctant to criticize those he disagrees with.

For more than a quarter-century, the high court’s term has nearly always ended with a rush of opinions in late June and a fiery dissent from Scalia.

His colleagues sit with tight expressions or distant gazes as Scalia sounds off, his tone one of anger and disgust.

His targets Monday included illegal immigrants and President Obama. Dispensing with what he called the “dry legalities” of the Arizona immigration case, he spoke of its citizens being “under siege” and states feeling “helpless before those evil effects of illegal immigration.”

“Are the sovereign states at the mercy of the federal executive’s refusal to enforce the nation’s immigration laws?” Scalia asked.

Some said it was highly unusual, and perhaps out of line, for Scalia to cite Obama’s announcement in mid-June that he was granting a two-year reprieve to young people who entered the country illegally as children. Obama may have called it “the right thing to do,” Scalia said, but “Arizona may not think so.”

Usually, the justices rely only on what is in the legal record of the case.

Liberal commentators and some law professors said Scalia’s tone was strident and partisan.

Well my first reaction to that is that Antonin Scalia has been writing strident, highly charged dissents that forcefully argue his view of what the Court should have decided throughout the 26 years that he has been on the Supreme Court, and indeed did the same thing when he sat on the Court of Appeals for four years prior to that. Judging from the few interviews that he has granted over the years, one gets the impression that the tone of his legal writing is very much a reflection of his personality, shaped as it was in the Italian-American immigrant family he grew up in. We’ve seen that strident style in a number of his famous dissents, including for example his dissent from the Court’s 5-4 decision striking down laws against sodomy in Lawrence v. Texas. Whatever one might think of Scalia’s view of the law, one cannot deny that he knows the law and isn’t shy at all about expressing his opinion. So, to some extent one is tempted to dismiss this criticism of his latest opinion out of hand.

Nonetheless, there were several respects where Scalia’s dissent arguably went over the top, most notably when he for some reason decided to mention President Obama’s recent decision relation to a change in deportation policy for certain illegal immigrants:

Supreme Court Justice Antonin Scalia on Monday ripped President Obama’s new deportation directive when he offered his minority opinion on the Arizona immigration ruling.

The court tossed out most of Arizona’s controversial immigration law, but in his dissent Scalia raised eyebrows by blasting the Obama administration’s directive to stop deporting some young illegal immigrants though that policy was not a matter before the court in the Arizona case.

The conservative justice accused Obama of selectively enforcing only those immigration laws that he deems appropriate and said states would never have joined the union if the framers of the Constitution had intended for the executive branch to wield power in such a way.

“The delegates to the Grand Convention would have rushed to the exits,” Scalia wrote.

Scalia, the longest-serving justice on the high court, was not arguing that the administration’s policy was unconstitutional.

“The President said at a news conference that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration’s proposed revision of the Immigration Act.7,” Scalia wrote. “Perhaps it is, though Arizona may not think so.”

Rather, Scalia questioned the administration’s motives, arguing that it didn’t make sense for the U.S. to sue to prevent a state from implementing partial immigration reform while unilaterally enforcing another set of partial reforms.

“But to say, as the Court does, that Arizona contradicts federal law by enforc­ing applications of the Immigration Act that the President declines to enforce boggles the mind,” Scalia wrote.

It strikes me as odd to say the least, that Scalia felt it necessary to inject contemporary politics into a legal opinion in this manner. For one thing, the issues he brings up here have absolutely no relevance to the central issue that was before the Court, which was the question of whether or not certain provisions of the Arizona law were pre-empted by Federal Immigration Law. That’s a matter that is largely going to be dictated by the Supremacy Clause of the Constitution and the case law that has interpreted and applied it over the years. There’s really no reason to bring up what the President may or may not have done two weeks previously related to a policy decision that has nothing to do with the facts of the case before the Court. Secondly, of course, Scalia isn’t really even making a legal argument here at all. The fact that the Federal Government has made a change in immigration policy is a political question, not a legal one, and unless the matter were before the Court for some reason or another there really wasn’t any proper purpose in Scalia  commenting on it from the bench in an opinion that is now part of the official records of the United States.

In his opinion, Scalia also wondered whether the states would have entered into the Union had they known that the Federal Government wouldn’t be securing the borders:

Scalia asks if the states would have ever even joined the union if they had contemplated the federal government taking the power to enforce immigration law away from the states and then purposefully leaving their borders with another country undefended. He concludes that the union could not have been built that way: “Now, imagine a provision—perhaps inserted right after Art. I, §8, cl. 4, the Naturalization Clause—which included among the enumerated powers of Congress ‘To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.’ The delegates to the Grand Convention would have rushed to the exits.”

This one strikes me as more an example of Scalia’s style for rhetorical flourish than anything else, and not nearly as bothersome as bringing up contemporary politics. It’s also worth noting that none of this kind of stuff has any real legal meaning. First of all, of course, Scalia is in the dissent, but even if the time arises when a future lawyer, judge, or Justice wants to cite Scalia’s opinion for some reason, they aren’t going to be citing the rhetorical flourishes and political rhetoric, they’re going to be citing his legal arguments for why the provisions of SB1070 should have been upheld. Of course, none of that is going to mollify the critics.

One of those critics is E.J. Dionne who, somewhat absurdly, says Scalia has to resign. Dionne’s argument is largely ridiculous, but I do tend to agree with those who found Scalia’s politically tinged comments from the bench to be disturbing and inappropriate. It’s really not a Judge’s place to be inserting irrelevant political arguments into what was, in the end, a rather limited legal argument. As I said the only real question before the Court is whether the Arizona law, or any part of it, was pre-empted by Federal law, the rest is all what lawyers call dicta, additions to a judicial opinion that have nothing to do with the holding in the case. Moreover, as Ed Morrissey notes, Scalia’s off-the-cuff comments on the deportation policy change are going to give some people grounds to demand that he recuse himself if a case dealing with that matter ever makes its way to the Supreme Court:

More to the point, though, is the danger of having a Supreme Court justice take a public stance on a public-policy issue that has at least a decent chance of becoming part of a court fight.  Rep. Steve King (R-IA) and others have already threatened to take Obama to court over the imposition of the DREAM act by executive fiat.  Thanks to this public outburst, Scalia has put himself in position for a recusal, since it’s pretty clear that he has a built-in bias on the specific issue.  It may have felt satisfying, but in the end the blast will do more damage than good.

(…)

[A]ppellate jurists are supposed to refrain from making specific public comments on matters that may come before the court.  It’s inappropriate, and that’s exactly what Scalia did in this case. If Ruth Bader Ginsburg inserted support for Obama’s immigration policy change into an opinion, you can bet that conservatives would be screaming for a recusal if/when a challenge to it came before the Supreme Court, and we’d be right to do so.

I think that the danger here may be a bit over-stated, but that’s only because I don’t think the legal challenges to this policy change are going to go anywhere to begin with, or that the Supreme Court would even agree to hear the case should it ever get that far. Even if it does, it’s going to be at least a couple years before that happens. Nonetheless, Ed is right that Scalia has set himself up for a charge that he has already pre-judged the case that could potentially be coming before him, and all because he decided for some reason to go off on an issue completely irrelevant to the case that was actually before him.

Scalia’s dissent is embedded below, it runs about 20 pages:

Arizona v. United States

Please follow and like us:
FILED UNDER: Borders and Immigration, Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. mattb says:

    It’s hard not to see this as a bit of “school yard payback” in a feud that arguably started with the 2010 State of the Union address, and Obama’s very public critique of the Citizens United ruling in the presence of the Court. Obama, at the time spoke from his bully pulpit. Justice Scalia has now spoken from his.

    The broader questions, is how do we reconcile these sorts of actions with the necessity to preserve the illusion that Judges, when they don the robes, somehow become apolitical.

  2. michael reynolds says:

    I actually appreciate Scalia’s openness. He’s a Republican partisan. He always has been. Now maybe we can cut the bullsh*t and stop pretending that the Supreme Court is anything but a third political branch of government. This isn’t objectivity, it’s not strict interpretation of the Constitution, it’s politics, just as it was with Bush v. Gore. Scalia is the Republican whip on the Supreme Court.

  3. Scalia is increasingly becoming the Andy Rooney of the Supreme Court, just rambling off on tangents that have nothing to do with the law based on whatever has him upset at the momment. He really ought to be an embarassment to the right; he makes flimsy arguments that he then tries to pass off as serious legal thought, creating a strawman version of conservative legal theory that makes it easier to impugn other conservative justices who still take their jobs seriously.

  4. One of those critics is E.J. Dionne who, somewhat absurdly, says Scalia has to resign. Dionne’s argument is largely ridiculous, but I do tend to agree with those who found Scalia’s politically tinged comments from the bench to be disturbing and inappropriate.

    If you agree it was entirely inapropriate, then why is suggesting he ought to resign absurd?

  5. My proposal would be to get rid of Supreme Court Justices entirely. Each year 18 random federal of appeal justices would be selected to serve on the Supreme Court for the term. Nine would sit on a selection board to choose which appeals should be selected for Supreme Court review, the other nine would hear the cases chosen by the previous year’s selection board.

  6. Kinky Beats says:

    @Doug:

    One of those critics is E.J. Dionne who, somewhat absurdly, says Scalia has to resign. Dionne’s argument is largely ridiculous, but I do tend to agree with those who found Scalia’s politically tinged comments from the bench to be disturbing and inappropriate. It’s really not a Judge’s place to be inserting irrelevant political arguments into what was, in the end, a rather limited legal argument

    If not resignation, what repercussions do you think are appropriate for an event like this?

  7. neil says:

    There’s really no reason to bring up what the President may or may not have done two weeks previously related to a policy decision that has nothing to do with the facts of the case before the Court.

    Though I agree with the thrust of your argument, this particular point is not as self-evident as you hold it to be. The majority opinion does, in fact, make several assertions about Federal authority and right to exercise discretion in immigration law, which are germane to the case but which also apply to the President’s decision about exercising discretion about immigration law. The decision must have taken some of the wind out of the sails of anyone hoping to mount a court challenge against Obama’s new deportation policy; going off the AZ opinion, they wouldn’t get as far as the Supreme Court. If the majority tipped its hand that they wouldn’t support a challenge to the policy, then Scalia has a reason to signal that he would.

    The fact that he couldn’t do so in a more judicious way may, in fact, be a sign that he is slipping or taking his lifetime seat more for granted, though.

  8. PD Shaw says:

    Scalia shouldn’t have read from his dissent to criticize a policy he may be asked to judge at some point. That is because the Arizona case is directly relevant to the new deportation policy.

    With respect to the provision of Arizona law unanimously found not to be pre-empted, the administration had argued that Arizona could not enact laws that interfered with the President’s discretionary powers to enforce that law. “The United States’ argument that §2(B) is pre-empted, not by any federal statute or regulation, but simply by the Executive’s current enforcement policy is an astounding assertion of federal executive power that the Court rightly rejects.” (Alito)

    While the opinions were being finalized, the administration announced a new enforcement policy without law or regulation, which may also end up before the SCOTUS to evaluate further assertions of federal executive power without federal statute or regulation. If the case ever got to the SCOTUS, I think recusal may be appropriate (for once).

  9. rudderpedals says:

    He has every right to voice harsh political opinions but should resign to stand for office in one of the other two political branches. These statements are inappropriate from a sitting Justice.

  10. Barry says:

    @mattb: “It’s hard not to see this as a bit of “school yard payback” in a feud that arguably started with the 2010 State of the Union address, and Obama’s very public critique of the Citizens United ruling in the presence of the Court. Obama, at the time spoke from his bully pulpit. Justice Scalia has now spoken from his.”

    a) Bush v. Gore.

    b) The last several decades of the right bashing judges at every opportunity.

  11. James Joyner says:

    There was actually a book some years ago collecting some of Scalia’s rhetorical flourishes: Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice. He’s sometimes over-the-top but he’s a first class writer and uses a debate style more common to the Oxford Union than the American bench. But I rather like it.

    While I disagree with Scalia here on the law–the Supremacy Clause makes this one a slam dunk, it seems to me–I think he’s making perfectly reasonable rhetorical points here. Yes, the federal government controls immigration and foreign policy, including border security. But his argument is that the federal government is not only manifestly failing at that job but that President Obama has openly declared that he isn’t even going to try to enforce a part of it. Given that Arizona and a handful of other border states are disparately impacted by these circumstances, Scalia reasons, they ought to be able to step in and lend the Feds a hand in enforcing the damn law.

    Now, again, I disagree with Scalia on both the law and the policy here. While I cringe at the method Obama is using on separation of powers grounds, I think he’s right on both policy and moral grounds. And while I sympathize with Arizona’s being flooded with illegal immigrants, I fear that having amateur local yokels trying to enforce border security is a recipe for making brown people show their papers at every turn.

    But I don’t have the slightest problem with a Supreme Court Justice forcefully articulating his legal views on a case that’s before him. Especially when he’s in dissent and it’s mostly a matter of venting for the record books. Nor do I think it inappropriate for him to point to an ongoing political dispute between the president and Congress that illustrates his central argument in said case.

  12. mattb says:

    @Barry: No offense Barry, but your point is?

    I can see the issue of (A) having to do with the explicit political nature of the court (and its something that will not be treated well in the history books). But that isn’t anything new.

    As far as (B), all I can respond with is “so what?” Yes, the Right developed the meme of Judicial Activism. But it’s become a tool deployed by either side when they don’t like the decision. And I’m sorry but the entire “but when I use it I’m REALLY Correct” doesn’t fly. I have deep issues with Citizens United, but it still doesn’t count as Judicial Activism.

    Beyond that, I was commenting on the specifics of Scalia’s oral descent, how it was crafted, and the way it was performed. There’s little doubt that it was a direct and political attack on Obama. As to why it was done in that particular way and in that particular form, we need to look to the State of the Union Address.

    Note I’m not making a simple “Obama started it” or “Obama deserved it” argument here (though I can see how it might be read as that).

  13. Ben Wolf says:

    @James Joyner:

    Dispensing with what he called the “dry legalities” of the Arizona immigration case, he spoke of its citizens being “under siege” and states feeling “helpless before those evil effects of illegal immigration.”

    If I hear Scalia discuss the hopelessness of those who can’t obtain health care, and who feel “helpless before those evil effects of employer-based insurance”, I’ll reconsider your opinion here. But Scalia isn’t articulating a legalistic view, he’s articulating a specific stance on public policy, one which just happens to converge with the sacrosanct “conservatism” he’s always spouting on about at political fundraisers he’s not supposed to be attending.

  14. al-Ameda says:

    No surprise here. From Bush v Gore, to using movement rhetoric and talking points in the oral arguments on ACA, to using the Arizona case to criticize Obama’s immigration position, Scalia has demonstrated his partisan inclinations. The difference is recently he doesn’t even bother to dress it up in legal language. Oh well, presidential elections have consequences. If Liberals can start winning presidential elections, justices like Scalia will become a minority.

    Also, perhaps now that we have an obviously activist conservative court, the word “activist” will cease to be used in the pejorative sense? Conservatives have used the term “activist” to trash liberal justices for about 30 to 40 years, and finally now that they have their own “activist” court I think it’s time for conservatives to come clean and admit that an “activist” court is what they wanted all along.

  15. steve says:

    Odd? Scalia is a political creature. Only lawyers believe that he is interpreting the law impartially. We need term limits for these judges.

    Steve

  16. Steve V says:

    A law professor friend of mine who pays much closer attention to the Supreme Court than I do told me that he went around the bend around the time he was getting grief for going hunting with Cheney. He was always prickly, but that’s when he starting morphing into the full-on talk-radio right winger he is now.

  17. James Joyner says:

    @Ben Wolf: I’m not arguing that he’s a non-partisan judicial oracle; such a creature has yet to be seen in the wild. Rather, I’m saying that Scalia acts–especially as a dissenter–as a raucous but intellectual Oxford-style debater. He’s provocative in making points but I don’t see him as a party hack. He’s forcefully and mischievously arguing his intellectual philosophy.

  18. Tlaloc says:

    I don’t know when he kept harping on the supposed “cornhusker kickback” that smacked strongly of party hack and not intellectual.

    I agree that he’s a talented debater. Often when reading his writing I have a minute of thinking he’s actually right before I realize that was a carefully constructed illusion of bullsh!t that doesn’t actually bear up to cursory examination. Still his ability to get that minute or two of agreement is impressive given just how weak his actual arguments are fundamentally.

    Short form- he dresses ludicrously bad ideas well, but they remain ludicrously bad ideas.

  19. Ron Beasley says:

    OTB is loading really slowly. No problem anywhere else.

  20. PD Shaw says:

    @steve: I believe Scalia has developed his approach to interpreting the Constitution and statutes that he applies pretty consistently. Sometimes his approach leads to “liberal” outcomes that are opposed to a Republican President and Conservative orthodoxy, like in Hamdi v. Rumsfeld, where he concluded that the text and original meaning of the Consitution led him to believe that an American citizen could not be treated as an enemy combatant and deprived of the right to defend himself in a criminal trial for treason.

    Does his approach tend to favor Republica/conservative outcomes? Yes, but that seems to be better than having no approach other than personal point of view.

    Does his approach probably have some “give” at the margins? That would be the conservative indictment against Scalia.

  21. Hey Norm says:

    Scalia is better suited to Hannity’s show than the SCOTUS. And his rant overcArizona’s profiling law proves it. Dionne is right.

  22. This seems a continuation in the theme spotted earlier. Obama trolls with policy changes, and conservative impale themselves in the aftermath.

    In this case, Obama trolled up a Justice. He’s shredded the apolitical shroud that is supposed to protect him.

    Amazing timing too.

  23. (i’m awaiting moderation.)

  24. Jeremy R says:

    Judge Richard Posner on Scalia’s dissent:

    Justice Scalia is upset about illegal immigration. But where is his evidence?

    Justice Scalia says that it “boggles the mind” to think that Arizona could be contradicting federal law by enforcing applications of federal immigration law “that the President declines to enforce.” He says that the federal government “does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude.” The federal government is “refus[ing] to enforce the Nation’s immigration laws.”

    These are fighting words. The nation is in the midst of a hard-fought presidential election campaign; the outcome is in doubt. Illegal immigration is a campaign issue. It wouldn’t surprise me if Justice Scalia’s opinion were quoted in campaign ads. The program that appalls Justice Scalia was announced almost two months after the oral argument in the Arizona case. It seems rather a belated development to figure in an opinion in the case.

    In his peroration, Justice Scalia says that “Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrant who invade their property, strain their social services, and even place their lives in jeopardy.” Arizona bears the brunt? Arizona is only one of the states that border Mexico, and if it succeeds in excluding illegal immigrants, these other states will bear the brunt, so it is unclear what the net gain to society would have been from Arizona’s efforts, now partially invalidated by the Supreme Court. But the suggestion that illegal immigrants in Arizona are invading Americans’ property, straining their social services, and even placing their lives in jeopardy is sufficiently inflammatory to call for a citation to some reputable source of such hyperbole. Justice Scalia cites nothing to support it.

  25. PD Shaw says:

    (i’m awaitng moderation as well; too immoderate I suppose)

  26. @PD Shaw:

    I believe Scalia has developed his approach to interpreting the Constitution and statutes that he applies pretty consistently.

    Oh yeah? Then explain his concurrence in Gonzalez v. Raich?

  27. the Q says:

    Again, the guy is a flatulent prick and his remarks are overrated and downright stupid at times.

    Uh, what are the chances the Union would have been formed if the Framers’ knew that a vacuous,partisan hack supreme court would protect as “free speech” the legality of the King of england or the east india company sending over millions of pounds to back candidates in U.S congressional elections friendly to the crown’s mercantile trade policy?

    What would have been the point of a revolution to trade a political tyranny for an economic tyranny?

    And what about the selectively lax enforcement by republican presidents of financial regulatory rules ignored by bush’s SEC?

    Again, this fat snarky bastard long ago lost his fastball and now is a parody of himself and an embarrassment to the Court. I wouldn’t be surprised if under his robes he is wearing a clown suit and women’s panties.

  28. HarvardLaw92 says:

    I respect his intellect, no doubt about that, but he has increasingly become a crank going off on rhetorical tangents aimed more at venting his spleen than anything else.

    Ironically, he was possibly the absolute worst option for Meese & Co. to have selected for the agenda they had in mind when they selected him, and indirectly one of the largest reasons that originalism has been so resoundingly relegated to the dustbin in any practical sense.

    His own prickly personality, which can’t help but alienate people, prevented him from accomplishing the one task he needed to accomplish above all others to achieve the “Constitution in Exile” revival he was intended to lead – achieving buy in from his peers. In fact, I’d say that his presence on the court was one of the primary factors that led O’Connor towards the centrist alliance with Kennedy, and to a lesser extent Breyer, that came to define the Rehnquist court.

  29. Comanche Voter says:

    To ignore what Obama had done with his amnesty executive order is to ignore reality. Should Scalia have mentioned it? Your mileage may vary, but the immigration situation, and the Fed’s refusal to enforce the law was at the heart of the controversy before the Court.

    And as for smacking of “schoolyard payback”? How about Obama and Janet Napolitano immediately cancelling the existing state and federal enforcement arrangement on immigration–for Arizona alone?

    No side has a monopoly on pettiness and meanness in this dispute, but let’s just say that Obama has more than his share of those qualities here.

  30. Steve V says:

    I was told in law school — never confirmed whether it’s actually true — that Scalia refused to join any opinion authored by O’Connor. If they voted together, he would always write separately. Don’t remember the backstory though.

  31. Buzz Buzz says:

    Supreme Court Justice dares to openly disagree with God-King Obama.

    OTB drones go into a frenzy, demand the heretic’s resignation.

    The rest of America laughs at them.

  32. PD Shaw says:

    @Stormy Dragon: I need a more specific question. I think Scalia feels that the liberals and the conservatives are too extreme on federalism issues. Which oddly puts him near the swing position and earns him contempt from both sides.

    Of the Justices on the Court the longest, here are their records for siding with the federal government on federalism issues through 2005:

    Breyer: 65.6%
    Ginsburg: 60.6%
    Kennedy: 50.9%
    Scalia: 50.0%
    Thomas: 41.6%

    What are people trying to measure here? Breyer and Thomas are about equally removed from the mean from 1986-2005 (53.7% for all justices). Are they idealogues? Or are Scalia and Kennedy political because they are flippers? Or are they moderates?

  33. michael reynolds says:

    @Buzz Buzz:

    OTB drones go into a frenzy, demand the heretic’s resigna

    tion.

    Dittohead moron repeats whatever he heard on Fox.

  34. michael reynolds says:

    @Buzz Buzz:

    OTB drones go into a frenzy, demand the heretic’s resignation

    Dittohead moron repeats whatever he heard on Fox.

  35. It strikes me as odd to say the least, that Scalia felt it necessary to inject contemporary politics into a legal opinion in this manner.

    Perhaps you should read the National Review article about this, which shoots that notion down.

    Furthermore, when do we get to read articles stating that justices like Ginsberg should retire, since they seem to think that decisions should be made based on foreign law? And that she doesn’t think much of the US Constitution she swore to uphold?

  36. jan says:

    @mattb:

    “As far as (B), all I can respond with is “so what?” Yes, the Right developed the meme of Judicial Activism. But it’s become a tool deployed by either side when they don’t like the decision. “

    That was a fair and unprejudiced response. Kudos, once again.

    A speculation going around is that Scalia seems to become more caustic when his side (the conservatives) is losing. People are wondering if this might mean that the ACA will hold up under constitutional scrutiny, and that his outburst was simply displaced displeasure/frustration over what will be revealed Thursday.

  37. mattb says:

    @William Teach:

    Furthermore, when do we get to read articles stating that justices like Ginsberg should retire, since they seem to think that decisions should be made based on foreign law? And that she doesn’t think much of the US Constitution she swore to uphold?

    Weak Tea for two reasons… the first being that much bitching arose in Right Wing Media over those particular comments, including multiple calls for her retirement/resignation. Crying partisanship by citing an example of past partisanship on the opposite side isn’t the best method for making an argument.

    Second of all, there is a general #understandingfail about Ginsberg’s comments. If you actually read what she said, versus having a knee jerk jingoistic reaction, the comments actually make a bit of sense (i suggest starting with https://www.outsidethebeltway.com/ruth-bader-ginsburg-to-egypt-dont-use-our-constitution-as-a-guide/ and https://www.outsidethebeltway.com/on-using-the-us-constitution-as-model/ ).

    Scalia’s venting, on the other hand, makes far less sense, and has been pointed out, create a potential future conflict on a subject that may eventually makes its way to the Supreme Court. So you get no points in this round of “partisan analogies.”

  38. Ron Beasley says:

    Scalia is the Supreme Court’s John McCain – get off my lawn.

  39. M. Bouffant says:

    @William Teach: Right you are! No “foreign” law could possibly be any good. All American law was created of whole cloth in a total vacuum.

    And that she doesn’t think much of the US Constitution she swore to uphold?
    Uh, any citations or anything as to this? Or is it that conservative telepathy that you’re all soooo good at?

  40. DavidV says:

    Y’all are injecting bias into the branch of government which is, by and large, the least biased of all. This is not to say that each justice is completely apolitical — but people need to dig deep into the details before forming an opinion. And most do not worry about the details.

    Easy example: in Bush v. Gore (cited here multiple times to show the court’s obvious political bias), the 5-4 decision to stop the recount was dissented _by an appointee of the H.W. Bush administration_, Justice David Souter. He thought Florida should have continued the recount, which would have helped Gore and cast doubt on the legitimacy of Bush’s presidency.

    But nevermind. People here don’t care about details, they only care about who won.

    It is obvious to me that Scalia’s vehement dissent here is in defense of Arizona, and generally the states, and their right to enact legislation to enforce federal immigration law. In the oral argument he plainly said, “Can state law be made against robbing a federal bank? I think it is… but does the federal government complain that legislation preempts their right to enforce it? Of course not.” That’s a paraphrase, but the point remains that his whole mindset – right or wrong – is in defense of the state rights. I don’t see this as a political motive.

    I’ve watched him speak publicly, I’ve seen his debates with Breyer, I’ve listened to dozens of oral arguments with his charged discourse… and Justice Antonin Scalia is one of the most standup Americans you will find in our federal government. He happens to be conservative, which gives him a Republican leaning. But I am quite sure you can find decisions of his that contradict the Republican viewpoint, and even his own philosophies. He was nominated to the bench unanimously by the Senate — 98 – 0. I think people underestimate the gravity of this fact when considering Scalia’s impartiality.

    He has an opinion, he is backing it up. He cited the president because that goes to the loss of the state’s rights to produce their own immigration legislation. This is not difficult to understand.

    But this one post will have zero effect on the perception of bias. Scalia’s own honest and forthright profession will likewise have no impact. No wonder the justices don’t think their court is ready for cameras, a simple bold dissent becomes interpreted as political without any examination of the motive. As a justice he is not limited to strictly legal or constitutional statements, despite the article’s implication that such is the case.

    Lastly, all of the justices have sharper minds than most people reading this article. They didn’t get to the top completely through politics or by cheating. Scalia isn’t slipping, he was mad about what he thinks is a wrong decision and felt the need to voice his opinion.

  41. Scott O. says:

    @M. Bouffant: @M. Bouffant:

    Here you can read Justice Ginsburg’s comments which some people believe means she doesn’t think much of the constitution.

  42. Tlaloc says:

    Easy example: in Bush v. Gore (cited here multiple times to show the court’s obvious political bias), the 5-4 decision to stop the recount was dissented _by an appointee of the H.W. Bush administration_, Justice David Souter. He thought Florida should have continued the recount, which would have helped Gore and cast doubt on the legitimacy of Bush’s presidency.

    But nevermind. People here don’t care about details, they only care about who won.

    Maybe people understand there’s more to a judge’s partisan feelings than what president nominated him. Keep in mind Souter is one o the great grievances the right holds against pappy bush precisely because he turned out not to be a wingnut they thought he would be.

    And no the rest of your comment was not any better grounded in reality.

  43. sam says:

    @James Joyner:

    I think he’s making perfectly reasonable rhetorical points here

    And if this prediction comes to pass?

    “Illegal immigration is a campaign issue. It wouldn’t surprise me if Justice Scalia’s opinion were quoted in campaign ads,” Judge Richard A. Posner, a prominent federal appeals court judge, wrote Wednesday in the online journal Slate. Judge Posner, who sits on the United States Court of Appeals for the Seventh Circuit, in Chicago .[Source]

    What will you say then, James?

  44. Lit3Bolt says:

    @sam:

    James’ response: “It’s ok if my side does it, but if your side does it, then it’s unconstitutional.”

  45. swearyanthony says:

    @Jeremy R: Posner is an incredibly gifted writer. His skewering of Scalia was a thing of beauty. I may (and have) disagree with his opinions, but I don’t doubt that he is a thoughtful and cautious judge. Scalia has turned into Grandpa Simpson.

  46. mattb says:

    @DavidV:

    Lastly, all of the justices have sharper minds than most people reading this article. They didn’t get to the top completely through politics or by cheating. Scalia isn’t slipping, he was mad about what he thinks is a wrong decision and felt the need to voice his opinion.

    I could hang with this, sorta, up until you suggested that a Federal Justice didn’t get to the top “completely through politics.” Yes, these folks are smart cookies, but a statement like this seems to suggest that (a) most other folks get to the top through politics and (b) that a LOT of politics are not involved in the rise of Supreme Court and other federal justices.

    Politics, and those individual’s skills as political operators, is a BIG reason why they are on that bench and other, equally smart Jurists are not.

  47. al-Ameda says:

    @Buzz Buzz:

    Supreme Court Justice dares to openly disagree with God-King Obama.

    You seem to have a messiah obsession, why?

  48. mattb says:

    And let’s give it up to @jan for accurately reading the tea leaves!

    A speculation going around is that Scalia seems to become more caustic when his side (the conservatives) is losing. People are wondering if this might mean that the ACA will hold up under constitutional scrutiny, and that his outburst was simply displaced displeasure/frustration over what will be revealed Thursday.

  49. grumpy realist says:

    @William Teach: Dude, the entirety of US law originated from British Common Law. So if you’re cranky about “foreign influences” on our law, you’re going to have to scap everything and start from ground zero.

    And those of you who think that any non-US generated law is EEEVIL and shouldn’t be used: guess you don’t like foreign trade, then. Try finding any international trade contract that doesn’t refer to CISG or INCOTERMS. You want to sell to Germany? You’re going to have to deal with German consumer protection law. You’re not willing to have that written into the contract? Gee, they’ll go find another supplier.