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Thursday, June 28, 2012 12:35:59 AM
Justice Scalia must resign
By E.J. Dionne Jr., Wednesday, June 27, 9:21 AM
Justice Antonin Scalia needs to resign from the Supreme Court.
He’d have a lot of things to do. He’s a fine public speaker and teacher. He’d be a heck of a columnist and blogger. But he really seems to aspire to being a politician — and that’s the problem.
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.
“Arizona bears the brunt of the country’s illegal immigration problem,” the politician-justice proclaimed. “Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are simply unwilling to do so.
“Arizona has moved to protect its sovereignty — not in contradiction of federal law, but in complete compliance with it.” Cue the tea party rally applause.
As it happens, Obama has stepped up immigration enforcement. But if the 76-year-old justice wants to dispute this, he is perfectly free as a citizen to join the political fray and take on the president. But he cannot be a blatantly political actor and a 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 a 2004 incident. 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.
Scalia scoffed at the idea that he should recuse himself. “My recusal is required if .?.?. my ‘impartiality might reasonably be questioned,’?” he wrote in a 21-page memo. Well, yes. But there was no cause for worry, Scalia explained, since he never hunted with Cheney “in the same blind or had other opportunity for private conversation.”
Don’t you feel better? And can you just imagine what the right wing would have said if Vice President Biden had a case before the court and went duck hunting with Justice Elena Kagan?
Then there was the speech Scalia gave at Switzerland’s University of Fribourg [ http://www.npr.org/templates/story/story.php?storyId=5304714 ] 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.”
It was a fine speech for a campaign gathering, the appropriate venue for a man so eager to brand the things he disagrees with as crazy or mind-boggling. Scalia should free himself to pursue his true vocation. We can then use his resignation as an occasion for a searching debate over just how political this Supreme Court has become.
http://www.washingtonpost.com/opinions/ej-dionne-jr-justice-scalia-should-resign/2012/06/27/gJQApkO06V_print.html
###
Did Justice Antonin Scalia go too far this time?
Some say the tone of Justice Scalia's dissent targeting President Obama and illegal immigrants was too
strident and partisan, even for the high court's longtime conservative firebrand.
Some say it was highly unusual, and perhaps out of line, for Justice Antonin Scalia, pictured in October, to use his dissent on Arizona’s immigration law to attack President Obama’s reprieve for young illegal immigrants.
(Jewel Samad / AFP/Getty Images / June 27, 2012)
By David G. Savage, Washington Bureau
June 27, 2012, 5:00 a.m.
WASHINGTON — Justice Antonin Scalia has never been shy about saying what he thinks and never reluctant to criticize those he disagrees with.
For more than a quarter-century, the high court's term has nearly always ended with a rush of opinions in late June and a fiery dissent from Scalia.
His colleagues sit with tight expressions or distant gazes as Scalia sounds off, his tone one of anger and disgust.
His targets Monday included illegal immigrants and President Obama. Dispensing with what he called the "dry legalities" of the Arizona immigration case, he spoke of its citizens being "under siege" and states feeling "helpless before those evil effects of illegal immigration."
"Are the sovereign states at the mercy of the federal executive's refusal to enforce the nation's immigration laws?" Scalia asked
Some said it was highly unusual, and perhaps out of line, for Scalia to cite Obama's announcement in mid-June that he was granting a two-year reprieve to young people who entered the country illegally as children. Obama may have called it "the right thing to do," Scalia said, but "Arizona may not think so."
Usually, the justices rely only on what is in the legal record of the case.
Liberal commentators and some law professors said Scalia's tone was strident and partisan.
He is "sounding more like a conservative blogger or Fox News pundit than a justice," said George Washington University law professor Jeffrey Rosen.
Paul F. Campos, a law professor at the University of Colorado at 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."
Edward Whelan, president of the Ethics and Public Policy Center and a former Scalia law clerk, said Scalia "was responding directly to the government's own argument. Scalia's basic point was to illustrate that the Arizona law didn't conflict with federal immigration law but instead was at odds with the current administration's refusal to enforce federal laws."
Scalia, now 76 and the court's senior justice, spoke only for himself. Justices Clarence Thomas and Samuel A. Alito Jr. dissented as well, but did so in separate opinions. It was hard to miss the fact that Scalia's reproach was directed at an opinion that spoke for Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy, the two who are likely to hold the deciding votes in the court's healthcare ruling, set for Thursday.
Scalia has long been a dominant figure in the court's oral arguments. His quick wit and sarcastic jibes can ruffle lawyers, particularly those who are arguing for liberal rulings.
It has been much debated, however, whether Scalia's dissents have helped or hurt his cause. His take-no-prisoners style has won him legions of admirers among conservatives. But he has also alienated some of the court's moderates, who split with him and went their own way.
In 1989, he criticized Justice Sandra Day O'Connor when she refused to go along with an opinion by then-Chief Justice William H. Rehnquist that would have overturned the Roe vs. 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 Kennedy and David H. Souter joined with O'Connor and broke with Scalia to uphold the abortion right. More recently, Kennedy, O'Connor and Souter 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. So far, the same has been true with Scalia and Roberts. The big test will come Thursday, however, when the chief justice begins the announcement of the court's decision on the constitutionality of the Obama administration's healthcare law.
http://www.latimes.com/news/nationworld/nation/la-na-scalia-20120627,0,128821.story
By E.J. Dionne Jr., Wednesday, June 27, 9:21 AM
Justice Antonin Scalia needs to resign from the Supreme Court.
He’d have a lot of things to do. He’s a fine public speaker and teacher. He’d be a heck of a columnist and blogger. But he really seems to aspire to being a politician — and that’s the problem.
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.
“Arizona bears the brunt of the country’s illegal immigration problem,” the politician-justice proclaimed. “Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are simply unwilling to do so.
“Arizona has moved to protect its sovereignty — not in contradiction of federal law, but in complete compliance with it.” Cue the tea party rally applause.
As it happens, Obama has stepped up immigration enforcement. But if the 76-year-old justice wants to dispute this, he is perfectly free as a citizen to join the political fray and take on the president. But he cannot be a blatantly political actor and a 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 a 2004 incident. 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.
Scalia scoffed at the idea that he should recuse himself. “My recusal is required if .?.?. my ‘impartiality might reasonably be questioned,’?” he wrote in a 21-page memo. Well, yes. But there was no cause for worry, Scalia explained, since he never hunted with Cheney “in the same blind or had other opportunity for private conversation.”
Don’t you feel better? And can you just imagine what the right wing would have said if Vice President Biden had a case before the court and went duck hunting with Justice Elena Kagan?
Then there was the speech Scalia gave at Switzerland’s University of Fribourg [ http://www.npr.org/templates/story/story.php?storyId=5304714 ] 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.”
It was a fine speech for a campaign gathering, the appropriate venue for a man so eager to brand the things he disagrees with as crazy or mind-boggling. Scalia should free himself to pursue his true vocation. We can then use his resignation as an occasion for a searching debate over just how political this Supreme Court has become.
http://www.washingtonpost.com/opinions/ej-dionne-jr-justice-scalia-should-resign/2012/06/27/gJQApkO06V_print.html
###
Did Justice Antonin Scalia go too far this time?
Some say the tone of Justice Scalia's dissent targeting President Obama and illegal immigrants was too
strident and partisan, even for the high court's longtime conservative firebrand.
Some say it was highly unusual, and perhaps out of line, for Justice Antonin Scalia, pictured in October, to use his dissent on Arizona’s immigration law to attack President Obama’s reprieve for young illegal immigrants.
(Jewel Samad / AFP/Getty Images / June 27, 2012)
By David G. Savage, Washington Bureau
June 27, 2012, 5:00 a.m.
WASHINGTON — Justice Antonin Scalia has never been shy about saying what he thinks and never reluctant to criticize those he disagrees with.
For more than a quarter-century, the high court's term has nearly always ended with a rush of opinions in late June and a fiery dissent from Scalia.
His colleagues sit with tight expressions or distant gazes as Scalia sounds off, his tone one of anger and disgust.
His targets Monday included illegal immigrants and President Obama. Dispensing with what he called the "dry legalities" of the Arizona immigration case, he spoke of its citizens being "under siege" and states feeling "helpless before those evil effects of illegal immigration."
"Are the sovereign states at the mercy of the federal executive's refusal to enforce the nation's immigration laws?" Scalia asked
Some said it was highly unusual, and perhaps out of line, for Scalia to cite Obama's announcement in mid-June that he was granting a two-year reprieve to young people who entered the country illegally as children. Obama may have called it "the right thing to do," Scalia said, but "Arizona may not think so."
Usually, the justices rely only on what is in the legal record of the case.
Liberal commentators and some law professors said Scalia's tone was strident and partisan.
He is "sounding more like a conservative blogger or Fox News pundit than a justice," said George Washington University law professor Jeffrey Rosen.
Paul F. Campos, a law professor at the University of Colorado at 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."
Edward Whelan, president of the Ethics and Public Policy Center and a former Scalia law clerk, said Scalia "was responding directly to the government's own argument. Scalia's basic point was to illustrate that the Arizona law didn't conflict with federal immigration law but instead was at odds with the current administration's refusal to enforce federal laws."
Scalia, now 76 and the court's senior justice, spoke only for himself. Justices Clarence Thomas and Samuel A. Alito Jr. dissented as well, but did so in separate opinions. It was hard to miss the fact that Scalia's reproach was directed at an opinion that spoke for Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy, the two who are likely to hold the deciding votes in the court's healthcare ruling, set for Thursday.
Scalia has long been a dominant figure in the court's oral arguments. His quick wit and sarcastic jibes can ruffle lawyers, particularly those who are arguing for liberal rulings.
It has been much debated, however, whether Scalia's dissents have helped or hurt his cause. His take-no-prisoners style has won him legions of admirers among conservatives. But he has also alienated some of the court's moderates, who split with him and went their own way.
In 1989, he criticized Justice Sandra Day O'Connor when she refused to go along with an opinion by then-Chief Justice William H. Rehnquist that would have overturned the Roe vs. 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 Kennedy and David H. Souter joined with O'Connor and broke with Scalia to uphold the abortion right. More recently, Kennedy, O'Connor and Souter 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. So far, the same has been true with Scalia and Roberts. The big test will come Thursday, however, when the chief justice begins the announcement of the court's decision on the constitutionality of the Obama administration's healthcare law.
http://www.latimes.com/news/nationworld/nation/la-na-scalia-20120627,0,128821.story
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