Roberts Court Being Shaped By An Unwieldy Scalia

By Jeremy Leaming, cross-posted from American Constitution Society

DonkeyHotey

For what feels like decades, reporters, pundits, and ideologues, mostly on the right, but some on the left, have lauded Supreme Court Justice Antonin Scalia for his wit, pointed oral argument questioning and allegedly brilliant writing. But those plaudits, in light of the justice’s performances during oral argument in cases challenging health care reform and Arizona’s racial profiling law, are wobbly at best, bordering on delusional.

In reality Scalia increasingly has difficulty, as The Washington Post’s Dana Milbank recently noted, containing his rabid partisanship. It’s unbecoming. During the Affordable Care Act oral argument it appeared, at times, that his only preparation involved reading right-wing blogs railing about the slippery slope to regulations mandating purchases of broccoli and gym memberships. At oral argument in Arizona v. U.S., regarding challenges to several portions of the state’s anti-immigrant law, Scalia “left no doubt from the start that he was a champion of the Arizona crackdown and that he would verbally lacerate anybody who felt otherwise,” Mibank wrote.

Milbank continued, “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.”

And it’s not a flattering image. Not only does Scalia come off as a ringleader of right-wing hacks in robes, he increasingly comes off as clueless or heartless. During the health care oral argument, questions from Scalia and some of the other right-wing justices prompted a string of commentators to question whether the justices understood the health care insurance market.

As former Mich. Gov. Jennifer Granholm pointed out the justices with their lifetime appointments “will never have to worry about health care personally,” and will “never be forced economic bystanders to the health insurance market.” But there were numerous briefs filed in the health care case, many of which explained the inefficiency and exclusivity of the health care insurance market. Scalia’s embrace of the simplistic broccoli argument, however, suggests he either doesn’t get it, or had not yet taken the time to understand the reality of the market.

Similarly, as Nathan Pippenger notes in a piece for The New Republic, Scalia’s questions during oral argument in the S.B. 1070 case revealed that the “leader of the Court’s” right-wing bloc might not have “a very sound grasp of our country’s immigration policies.”

Scalia, Pippenger writes, seemed not to appreciate the complexity of the federal immigration policy. Federal lawmakers must “take account of geopolitical considerations when deciding which undocumented immigrants to target for deportation.”

The solicitor general tried to explain this to the high court, but “Scalia seemed to recognize none of this; but he did have policy suggestion of his own,” which was essentially simply deport all “these people ….”
Does Scalia really believe it practical and realistic for law enforcement officials to try and deport 11 million hard working undocumented immigrants, or was he grandstanding. Either way he was far from brilliant.

[Related posts: Scalia Shills For The Tea Party; Scalia's Revisionism Won't Help Us "Get Over" Bush v. Gore]