Scalia Blurring Constitution's Lines? Critics Deplore Justice's Remarks Attacking Obama Administration

By Sherman, Mark | Pittsburgh Post-Gazette (Pittsburgh, PA), July 9, 2012 | Go to article overview

Scalia Blurring Constitution's Lines? Critics Deplore Justice's Remarks Attacking Obama Administration


Sherman, Mark, Pittsburgh Post-Gazette (Pittsburgh, PA)


WASHINGTON -- Justice Antonin Scalia ended his 26th year on the U.S. Supreme Court with a string of losses in the term's biggest cases and criticism that he crossed a line from judging to politics.

Justice Scalia's willingness to do battle with those on the other side of an issue long has made him a magnet for critics. But some of his recent remarks stood out in the eyes of court observers.

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.

Justice 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, Justice Ginsburg said the term's high-profile cases may explain why Justice Scalia "called counsel's argument 'extraordinary' no fewer than 10 times."

Ten lawyers who appear regularly before the Supreme Court, including two former Justice Scalia law clerks, were interviewed for this story and said they, too, had taken note of Justice 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.

Justice Scalia, 76, has been a powerful voice and an entertaining presence since he joined the high court in 1986. Especially in dissent, he never has been shy about explaining why his side had the better of an argument.

Measured by wins and losses, the court term did not end well for Justice 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 Justice 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, Justice 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," Justice Scalia's opinion said.

The outcry over his reference to Mr. Obama's announcement was immediate and included a call by liberal Washington Post columnist E.J. Dionne for Justice 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. …

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Scalia Blurring Constitution's Lines? Critics Deplore Justice's Remarks Attacking Obama Administration
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