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
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
"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. …