WASHINGTON – Justice Antonin Scalia drew unusually critical attention during this past Supreme Court term for comments he made in court and in his writing that seemed to some more political than judicial.
His dissent in the Arizona immigration case contained a harsh assessment of the Obama administration's immigration policy and prompted a public rebuke from a fellow Republican-appointed judge.
Scalia's aggressive demeanor during argument sessions even earned him some gentle teasing from his closest personal friend on the court. Justice Ruth Bader Ginsburg, speaking at a Washington convention, said the term's high-profile cases may explain why Scalia "called counsel's argument 'extraordinary' no fewer than 10 times."
The 76-year-old Scalia is a gifted writer with a razor wit and willingness to do battle with those on the other side of an issue. Those qualities have made him a powerful voice, an entertaining presence and a magnet for criticism on the court for more than 25 years. Even with that vivid background, some of Scalia's recent remarks stood out in the eyes of court observers.
Ten lawyers who appear regularly before the Supreme Court, including two former Scalia law clerks, were interviewed for this story and said they too had taken note of Scalia's recent comments. But mindful that they might appear before the high court or be in a position to submit legal briefs, they all declined to be identified by name.
Measured by wins and losses, the court term did not end well for Scalia. He was on the losing end of the court's biggest cases involving health care, immigration, lying about military medals and prison sentences, both for crack cocaine offenders and juvenile killers.
The last words Scalia uttered in court this term dealt with his disagreement with the court's majority in a decision that watered down Arizona's crackdown on illegal immigrants.
Summarizing his views in court, Scalia commented on President Barack Obama's recent announcement changing the deportation rules for some children of illegal immigrants. And in his written opinion, he referenced anti-free-black laws of slave states as a precedent for state action on immigration. Both drew critical notice.
"The president said at a news conference that the new program is 'the right thing to do' in light of Congress' failure to pass the administration's proposed revision of the Immigration Act. 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 the Immigration Act that the president declines to enforce boggles the mind," Scalia said.
The outcry over his reference to Obama's announcement was immediate and included a call by liberal Washington Post columnist E.J. Dionne for Scalia to resign. Conservative Judge Richard Posner of the 7th U.S. Circuit Court of Appeals in Chicago, who was appointed by President Ronald Reagan, contributed this passage to Slate magazine's annual end-of-term discussion:
"These are fighting words. The nation is in the midst of a hard-fought presidential election campaign; the outcome is in doubt. Illegal immigration is a campaign issue. It wouldn't surprise me if Justice Scalia's opinion were quoted in campaign ads. The program that appalls Justice Scalia was announced almost two months after the oral argument in the Arizona case. It seems rather a belated development to figure in an opinion in the case," wrote Posner, who had taken Scalia to task in the past.
Doug Kmiec, a conservative legal scholar who backed Obama's election in 2008 and served as his ambassador to Malta, said, "To broadly assert, as Justice Scalia seems to do in his Arizona dissent, that the Obama administration's enforcement priorities are 'too lax,' substitutes the unelected Antonin Scalia for the elected Barack Obama."
Scalia's defenders say the criticism is misplaced. They say the justice was doing something much more familiar and common, attacking the majority opinion by Justice Anthony Kennedy. "He really wasn't criticizing the Obama administration's position. He was just using it as a timely example of why he thought his position was the better one in the Arizona case," said Brian Fitzpatrick, a Vanderbilt University law professor who once served as a law clerk to Scalia.
Separately, in defending the tough Arizona law, Scalia's written dissent refers to the laws of Southern slave states that excluded freed blacks to support the notion that states had control over immigration in the era before Congress enacted national legislation. Liberal commentators seized on that reference as a particularly bizarre twist in an otherwise angry opinion.
But Scalia's supporters say the justice is held to a different standard in the media than other justices. Ginsburg, for instance, won wide praise when she used her dissent in a sex discrimination case in 2007 to urge Congress to take action to undo the court's decision.
During the three days of health care arguments in March, Scalia spoke more than anyone else, mainly posing hostile questions to defenders of the law, according to a study of the arguments.
In an exchange with Solicitor General Donald Verrilli Jr., he left little doubt about what he thought of the eventual winning argument that the individual insurance requirement could be found constitutional under Congress' taxing powers.
"You're saying that all the discussion we had earlier about how this is one big uniform scheme and the Commerce Clause, blah, blah, blah, it really doesn't matter. This is a tax and the Federal Government could simply have said, without all of the rest of this legislation, could simply have said, everybody who doesn't buy health insurance at a certain age will be taxed so much money, right?" Scalia asked.
Eventually, Verrilli said, "It is justifiable under its tax power."
"Okay. Extraordinary," Scalia said.
The next day, he said the court should not have to go through each and every page of the massive law to sort out what stays and what goes should the justices invalidate the requirement that people carry insurance.
"What happened to the Eighth Amendment?" Scalia asked, referring to the Constitution's ban on cruel and unusual punishment. "You really expect us to go through 2,700 pages?"