Scalia screed on immigration ruling went too far, some say
Justice Antonin Scalia raised eyebrows this week with his dissent on the Arizona immigration case in which he attacked President Obama's recent immigration decision.
Justice Antonin Scalia never has been shy about saying what he thinks and never reluctant to criticize those with whom he disagrees.
For more than 25 years, the Supreme Court's term nearly always has ended with a rush of opinions and a fiery dissent from Scalia. Colleagues sit with tight expressions or distant gazes as he sounds off, his tone one of anger and disgust.
Yet, when he read aloud from his dissent in the Arizona immigration case Monday, his attack on President Obama's decision not to deport many illegal immigrants who arrived here as children raised eyebrows. Obama's policy was announced two months after the Arizona case had been heard.
Dispensing with what he called the "dry legalities" of the case, Scalia spoke of Arizona citizens being "under siege" and states feeling "helpless before those evil effects of illegal immigration." Obama may have called his policy "the right thing to do," Scalia said, but "Arizona may not think so."
Monday was a busy day at the court, and the outburst was noted only briefly as analysts pored over the meaning of the day's rulings. In the days since, however, the discussion has mushroomed.
Commentators from across the political spectrum have been saying the 76-year-old Scalia — the most senior as well as, hands down, the funniest, most acerbic and most politically incorrect of the justices — went too far.
He is "sounding more like a conservative blogger or Fox News pundit than a justice," said Jeffrey Rosen, a George Washington University law professor.
Paul Campos, a law professor at the University of Colorado, Boulder, wrote on Salon about Scalia: "In his old age, he has become increasingly intolerant ... and a pompous celebrant of his own virtue and rectitude."
Judge Richard Posner, a famously conservative but also contrarian appeals-court jurist who has criticized Scalia's focus on pure constitutional originalism as naive and unrealistic, joined in the attacks.
"Illegal immigration is a campaign issue," Posner said. "It wouldn't surprise me if Justice Scalia's opinion were quoted in campaign ads."
The Washington Post assailed the justice in an editorial that appeared online Wednesday, saying he was endangering his legacy and the court's legitimacy. E.J. Dionne, a Post columnist, called for Scalia's resignation.
Besides the attacks on Obama and the majority opinion in the Arizona immigration case, Scalia cited immigration laws from the days of slavery, something else that shocked commentators.
"He jumped the shark here," said Gabriel 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."
Scalia long has been a dominant figure in oral arguments. His quick wit and sarcastic jibes can ruffle lawyers, particularly those arguing for liberal rulings.
It has been much debated, however, whether his dissents have helped or hurt his cause. His take-no-prisoners style has won him legions of admirers among conservatives. But he also has alienated some of the court's moderates.
In 1989, he criticized Justice Sandra Day O'Connor when she refused to go along with an opinion by then-Chief Justice William Rehnquist that would have overturned the Roe v. Wade decision that legalized abortion. O'Connor said such a decision was premature, since the case before the court involved only minor regulation of abortion.
In a full-bore dissent, Scalia said her view was "not to be taken seriously."
Three years later, Justices Anthony Kennedy and David Souter joined with O'Connor and broke with Scalia to uphold the abortion right. More recently, Kennedy, O'Connor and Souter, who retired in 2009, voted to uphold gay-rights claims, despite fierce dissents from Scalia.
Scalia had a good relationship with Rehnquist. Both conservatives, they almost always agreed on major cases. The same has been true with Scalia and Roberts. The big test will come Thursday, when the chief justice begins announcing the court's decision on the Obama administration's health-care law.