There has long been a consensus in mainstream circles, if not
necessarily in the legal community, that whether you agreed with him or
not, Justice Scalia possesses a great legal mind. Indeed, the conventional wisdom for decades, as
Jeremy Leaming writes, "has held that Justice Antonin Scalia is the high court’s most brilliant, disciplined, albeit ideological, member."
It may be that exposure through the internet "has altered the narrative by giving forums to an array of writers who have been quick to poke holes in an increasingly tiresome and shoddy line of reporting" or simply that Scalia's over-the-top rants and overt partisanship have finally reached a critical mass.
But as the country becomes more politically polarized, Scalia, as Dana Milbank
wrote a while back, has had more difficulty containing his rabid partisanship. He noted that “Scalia’s tart tongue has been a fixture on the
bench for years, but as the justices venture this year into highly
political areas such as health-care reform and immigration, the divisive
and pugilistic style of the senior associate justice is very much
defining the public image of the Roberts Court.”
Leaming is absolutely correct that "with each passing high court term, Scalia seems to be coming wackier,
more out-of-touch, increasingly shrill. And he’s being called out for
his nuttiness with growing frequency."
"
The Madness of Justice Scalia," Leaming's piece, cites various legal scholars and reporters, including law professor Paul Campos, who observed that Scalia “
has in his old age become an increasingly intolerant and intolerable blowhard:
a pompous celebrant of his own virtue and rectitude, a purveyor of
intemperate jeremiads against the degeneracy of the age, and now an
author of hysterical diatribes against foreign invaders, who threaten
all that is holy.”
Perhaps Scalia has finally gone too far. In a column last Wednesday (before the ACA decision),
E.J. Dionne called for Scalia to resign:
So often, Scalia has chosen to ignore the obligation of a Supreme
Court justice to be, and appear to be, impartial. He’s turned “judicial
restraint” into an oxymoronic phrase. But what he did this week, when
the court announced its decision on the Arizona immigration law, should be the end of the line.
Not content with issuing a fiery written dissent, Scalia offered a bench statement questioning
President Obama’s decision to allow some immigrants who were brought to
the United States illegally as children to stay. Obama’s move had
nothing to do with the case in question. Scalia just wanted you to know
where he stood.
After this case was argued and while it was under
consideration, the secretary of homeland security announced a program
exempting from immigration enforcement some 1.4 million illegal
immigrants,” Scalia said. “The president has said 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 laws. Perhaps it
is, though Arizona may not think so. But to say, as the court does, that
Arizona contradicts federal law by enforcing applications of federal immigration law that the president declines to enforce boggles the mind.
What
boggles the mind is that Scalia thought it proper to jump into this
political argument. And when he went on to a broader denunciation of
federal policies, he sounded just like an Arizona Senate candidate.
Dionne takes Scalia to task for being a "blatantly political actor" and justice at the same time: "Unaccountable power can lead to arrogance. That’s why justices typically
feel bound by rules and conventions that Scalia seems to take joy in
ignoring."
Recall, as Dionne reminds us, 2004, when "three weeks after the Supreme Court announced it would hear a case over
whether the White House needed to turn over documents from an energy
task force that Dick Cheney had headed, Scalia went off on Air Force Two
for
a duck-hunting trip with the vice president."
Then there was the speech Scalia gave at
Switzerland’s University of Fribourg a few weeks before the court was to hear a case involving the rights of Guantanamo detainees: "I
am astounded at the world reaction to Guantanamo,” he declared in
response to a question. “We are in a war. We are capturing these people
on the battlefield. We never gave a trial in civil courts to people
captured in a war. War is war and it has never been the case that when
you capture a combatant, you have to give them a jury trial in your
civil courts. It’s a crazy idea to me.”
Dionne does not even mention how Scalia (as well as his fellow conservative justices Thomas and Alito) regularly attend
right-wing events and political fundraisers. (Indeed, Clarence Thomas, in particular, is far quieter, but similarly nakedly partisan and ethically challenged. See, e.g.,
here and
here.)
Scalia is 76 years old but despite the urging of E.J. Dionne does not appear to be leaving the bench any time soon. What is of far greater concern is that Justice Ginsburg turns 80 next year and Justice Breyer turns 75. When you throw in Justice Kennedy (75), you have what the
New York Times
points out is "among the oldest courts since the New Deal era." As a
result, "the winner of the race for president will inherit a group of
justices
who frequently split 5 to 4 along ideological lines," suggesting "the
next president could have a powerful impact if he gets to replace a
justice of the opposing side."
And while it is true that Chief Justice Roberts showed some modicum of
sanity in voting to uphold the Affordable Care Act, he has not been magically transformed into the new swing justice. It should be noted
that while the outcome was welcome, his legal reasoning was, as Justice Ginsburg put it, "
stunningly retrogressive." (See
10 Ways John Roberts Is Still A Conservative's Best Friend.)
What shouldn't be lost in all the hoopla over the validation of Obamacare is that the Scalia and the other three dissenters (Thomas, Alito and Kennedy), as
Paul Krugman points out, "did so in extreme terms, proclaiming not just the much-disputed
individual mandate but the whole act unconstitutional. Given prevailing
legal opinion, it’s hard to see that position as anything but naked
partisanship."
As I have previously written, Romney's choice of Robert Bork as
co-chair of his Justice Advisory Committee is a disturbing sign of the
kind of radical jurists Romney would nominate. (See
Romney Gets Borked.) In the wake of Roberts' "defection," there will be even more pressure on Romney to choose right wing extremists in the Scalia-Thomas mold, a fact he is essentially admitting on the
campaign trail. Dionne is right that Scalia should resign but that isn't going to happen. But there remains an even more disturbing prospect than Scalia staying put. It is that a President Romney will add more right-wing ideologues to the Supreme Court (and throughout the federal judiciary), forming a solid block of partisan operatives.
