Monday, June 25, 2012

Scalia Really IS a Political Hack!

Six weeks ago, I wrote a piece on the overtly political (rather than constitutional) nature of Justice Antonin Scalia's questioning in oral arguments on the Arizona immigration law. Today, the Supreme Court handed down its decision, upholding the "papers, please" part of the law but striking down other parts involving state enforcement of federal law.

Scalia, to no one's surprise, dissented on the decision to strike down parts of the Arizona law. But he also went out of his way--this time in a written dissent-- to expose his political views. Referring to President Obama's recent decision to refrain from deporting certain young people brought into the country by their parents, Scalia introduced a completely irrelevant political observation: “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.”

The whole point is that it is not Arizona's place to decide on immigration. It is a federal responsibility. Scalia, who seems to be arguing that the states are sovereign entities and can police their own borders, rejects that constitutional principle. That strikes me as a bizarre view, but he is entitled to it.

In his opinion, however, he goes beyond that. Recall that the president's recent decision was not a subject of the case before the Court. To introduce it at all is entirely inappropriate. But even more inappropriate is what Scalia says about it. He questions the sincerity of the administration's explanation of its policy: “The husbanding of scarce enforcement resources can hardly be the justification for this,” he writes. Again, this is beside the point. Whether or not Scalia believes the administration's explanation for the policy is utterly irrelevant to the constitutionality of the Arizona law.

If Scalia would like to resign from the Court and run for office, he can question the motives of the administration all he likes. But to put such blatantly partisan arguments in a dissent shows how irredeemably political he is. He disapproves of the Obama administration's policies, so he wants Arizona to be able to act contrary to those policies.

We have reached a truly absurd point in the relationship between the Court and politics. The Republican Party, which has railed for decades against "activist judges" who "legislate from the bench" has no better representative of its political id than Antonin Scalia, a doctrinaire ideologue who routinely injects his personal political views into his decisions. He brazenly spouts partisan political arguments from the bench, all the while making the ridiculous claim that he is dedicated to the "original intent" of the Framers of the Constitution. But his words betray him. If you want to know what Scalia thinks, you would do better to watch Fox News than read the Constitution.

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