Thursday, May 3, 2012

Justice Scalia is a Political Hack

Ever since Antonin Scalia was appointed to the Supreme Court by Ronald Reagan in 1986, he has been widely lauded as the great thinker on the Court. "Certainly, no one denies his immense legal brilliance and intellectual abilities," one biographical sketch says, reflecting a fairly commonly accepted opinion--even on the left. In the past, I've even accepted it myself.

But I've grown increasingly skeptical of Scalia's "legal brilliance" over the years, and reports I read about the recent health care and immigration cases argued before the Court made me doubt it more than ever. Knowing that isolated quotations can be misleading, however, I decided to read the immigration case oral arguments in their entirety to see Scalia at work.

I was prepared for Scalia to be hostile to the administration's position, so I wasn't surprised when Scalia had little to say while Paul Clement made the case in favor of the Arizona law. What took me aback was how overtly political he was in his questioning. I expected that his hostility to the administration's position would be constitutionally based. I was wrong.

During the oral arguments, Scalia went out of his way to object not to the administration's constitutional argument, but to federal policy on immigration. Note how Scalia frames the issue in this exchange with Clement:
JUSTICE SCALIA: You’ll concede that the – that the State has to accept within its borders all people who have no right to be there, that the Federal Government has no interest in removing?
MR. CLEMENT: No, I don’t accept that, Justice Scalia, but –
JUSTICE SCALIA: That’s all the statute – and you call up the Federal Government, and the Federal — yes, he’s an illegal immigrant, but that’s okay with us.
Recall that the nature of federal enforcement policy is not the issue before the Court. But it seems fairly obvious that it is the object of Scalia's hostility. Scalia refers to people "that the Federal Government has no interest in removing" with the mocking tone that has made him famous. Regardless of what Scalia thinks of federal enforcement policy, it is absolutely irrelevant to the constitutionality of Arizona's law.

Scalia's point here is decidedly not constitutional. It is overtly political. He is effectively saying:  "I don't like how the federal government deals with immigration, so Arizona should be allowed to act differently, because I like their get-tough approach." That's a political argument, not a constitutional one.

Scalia's subsequent questioning showed that his disdain for federal policy blinded him to arguments that the point here is federal jurisdiction over immigration, not specific policy choices.

Later, during the federal government's presentation, Scalia became (not surprisingly) more argumentative. He even turned the administration's case on its head, and argued that states have the right to control their borders. He had hinted at this earlier in an exchange with Clement:
JUSTICE SCALIA: And the State has no power to close its borders to people who have no right to be there?
That, at least, was in the form of a question. But Scalia took it further in his questioning of Solicitor General Donald Verrilli, who presented the federal government's case:
JUSTICE SCALIA: The Constitution recognizes that there is such a thing as State borders and the States can police their borders.
What Scalia seems to be suggesting here is that states are the fundamental sovereign entity, a point which he later made even more explicit:
JUSTICE SCALIA: But if, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?
Think about that. If Scalia is right, and states have the right to defend their borders, would Arizona also be constitutionally authorized to check the IDs of every person entering the state from other states and detaining anyone whose papers were not in order? It would seem so. After all, mere days earlier Scalia had himself argued, with apparent seriousness, that without a "limiting principle" the federal government's argument for the individual mandate in health care would also allow it to force everyone to buy broccoli.

How can anyone known for his "legal brilliance" could even suggest a state power so absurd and obviously unconstitutional? When he's more concerned with politics and ideology than the Constitution, that's how.

But the worst example of Scalia's political posturing came when Verrilli tried in vain to explain to Scalia the difference between bank robbing and immigration. Scalia, sounding rather proud of himself, presented Verilli with the following analogy:
JUSTICE SCALIA: Anyway, what — what’s wrong about the states enforcing Federal law? There is a Federal law against robbing Federal banks. Can it be made a state crime to rob those banks? I think it is.
GENERAL VERRILLI: I think it could, but I think that’s quite –
JUSTICE SCALIA: But does the Attorney General come in and say, you know, we might really only want to go after the professional bank robbers? If it’s just an amateur bank robber, you know, we’re — we’re going to let it go. And the state’s interfering with our — with our whole scheme here because it’s prosecuting all these bank robbers.
Once again, Scalia's point is blatantly political--he doesn't like the selective enforcement policy of the federal government, it's an absurd "scheme" that no reasonable person could support.

Verrilli tried to explain to Scalia that immigration was different than bank robbing:
GENERAL VERRILLI: In addition, we have very significant issues on the border with Mexico. And in fact, they are the very issues that Arizona is complaining about in that –
JUSTICE SCALIA: So we have to — we have to enforce our laws in a manner that will please Mexico. Is that what you’re saying?
GENERAL VERRILLI: No, Your Honor, but what it does — no, Your Honor, I’m not saying that –
JUSTICE SCALIA: Sounded like what you were saying.
GENERAL VERRILLI: No, but what I am saying is that this points up why the Framers made this power an exclusive national power. It’s because the entire country feels the effects of a decision — conduct by an individual State. And that’s why the power needs to be exercised at the national level and not the State level.
As a matter of historical practice, Verrilli is undeniably right. How foreign nationals are treated in this country is inextricably intertwined with foreign policy. (For example, San Francisco's decision to force Japanese children into segregated schools in 1906 caused Theodore Roosevelt serious diplomatic headaches).  That makes the idea of allowing states to interject themselves into immigration constitutionally problematic to say the least. You would expect a Supreme Court justice to take that issue seriously. Scalia didn't.

Scalia's undisguised contempt for the idea that the United States should care what another nation thinks is remarkable. As repellant as I find the knee-jerk xenophobia that Scalia gave voice to, as a citizen he's entitled to that simple-minded view. He is not, however, entitled to introduce it as relevant to the constitutionality of the Arizona immigration law.

Whether or not the federal government chooses to take the views of the Mexican government into consideration has no bearing whatsoever on its constitutional power to make such judgments. That's a policy decision, one made by the elected representatives of the people. As a justice, Scalia has no business judging the wisdom of federal policy--none. His only concern in this case should be whether making those policy choices--whatever those choices are--is the federal government's exclusive purview.

But Scalia clearly was unconcerned with Verrilli's constitutional argument--the only one that is supposed to matter before the Court. He made a series of political points to support the decision he had unquestionably already reached. A truly brilliant legal scholar would at least make a show of couching his political views in constitutional language. Scalia doesn't even bother anymore. And that makes this alleged intellect of the Court little more than a political hack.

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