A Dissent by Scalia is Criticized as Political

NEW YORK TIMES

By Ethan Bronner

June 27, 2012

http://www.nytimes.com/2012/06/28/us/scalias-immigration-dissent-is-criticized-as-political.html

When Justice Antonin Scalia read aloud from his dissent in the Arizona immigration case on Monday, including an attack on President Obama’s recent decision not to deport many illegal immigrants who arrived here as children, it raised some eyebrows. Mr. Obama’s policy was announced two months after the case had been heard.

But Monday was a busy day at the Supreme Court, and Justice Scalia’s contention that the administration was refusing to enforce the nation’s immigration laws was only briefly noted as analysts pored over the meaning of his colleagues’ striking down of key elements of the Arizona law and their ruling on juvenile sentencing.

In the days since, however, the discussion has mushroomed. Commentators from across the political spectrum have been saying that Justice Scalia, who is the most senior as well as, hands down, the funniest, most acerbic and most politically incorrect of the justices, went too far.

“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, is a famously conservative but also contrarian jurist who has criticized Justice Scalia’s focus on pure constitutional originalism as naïve and unrealistic.

Still, his critique this time was noteworthy for its political specificity, and it was only part of a much larger discussion of Justice Scalia’s in-your-face style as the term comes to a dramatic conclusion on Thursday with a decision on Mr. Obama’s health care law, a ruling with at least as many political implications as the immigration decision.

The Washington Post assailed Justice Scalia in an editorial that appeared online on Wednesday, saying he was endangering his legacy and the court’s legitimacy. E. J. Dionne, a Post columnist, called for his resignation.

Others weighed in.

“With all due respect, the man has a tin ear,” said Paul Horwitz, a professor of law at the University of Alabama, Tuscaloosa. “When he loses on a hot-button issue, he sometimes blows his opportunity to be as persuasive as he could be.”

Justice Scalia in his dissent asked, “Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement — or, even worse, to the Executive’s unwise targeting of that funding?”

He then complained about the Obama administration’s plan to exempt about 1.4 million illegal immigrants not over 30 and asserted that the court’s statement that Arizona contradicted federal law by enforcing applications of the Immigration Act “that the president declines to enforce boggles the mind.”

In addition, he cited immigration laws from the days of slavery, something else that shocked commentators.

“He jumped the shark here,” said Gabriel J. Chin, a law professor at the University of California, Davis. “Harkening back to the ‘good old days’ of the law of slavery impeaches his position. He practically cited Dred Scott. The whole thing was intemperate, a screed.”

Jeffrey Toobin, who writes about the Supreme Court for The New Yorker, noted in a blog post on Tuesday that the last days of the court’s session “rarely show off the justices to great advantage. Like other mortals, they have put off doing their hardest work, so only the most controversial cases remain.”

He said the Arizona decision was sufficiently split that both sides were able to claim victory, meaning perhaps that a reasonable compromise had been reached. He then added: “That was not how Scalia saw it. After 25 years on the court, Scalia has earned a reputation for engaging in splenetic hyperbole — but he outdid himself this time.”