The Madness of Justice Scalia

June 26, 2012

by Jeremy Leaming

For what seems like decades a conventional wisdom, built largely by a handful of Supreme Court correspondents, has held that Justice Antonin Scalia is the high court’s most brilliant, disciplined, albeit ideological, member. He is also, according to this conventional wisdom, deliciously witty.  

But thankfully, the Web has altered the narrative by giving forums to an array of writers who have been quick to poke holes in an increasingly tiresome and shoddy line of reporting. (It should be noted, however, that longtime Supreme Court correspondent Linda Greenhouse is not among the gaggle that built the fawning picture of a straight-shooting justice with a jolly wit. Indeed Greenhouse has taken Scalia’s sloppy work to task on numerous occasions.)

Moreover the aging Scalia is simply not helping to advance the conventional wisdom. Though in fairness, he hardly seems concerned with what reporters, bloggers think or write about him. His constituency is made up of right-wing politicos and activists. He’s the Koch brothers’ justice.

With each passing high court term, Scalia seems to becoming wackier, more out-of-touch, increasingly shrill. And he’s being called out for his nuttiness with growing frequency.

In a piece for Salon, Paul Campos, for instance, is not mincing words about the tottering justice. Scalia, Campos writes, “has in his old age become an increasingly intolerant and intolerable blowhard: a pompous celebrant of his own virtue and rectitude, a purveyor of intemperate jeremiads against the degeneracy of the age, and now an author of hysterical diatribes against foreign invaders, who threaten all that is holy.”

Campos was referring to Scalia’s concurring, dissenting opinion issued in Arizona v. U.S. where a majority of the justices invalidated three provisions, and weakened a fourth, of Arizona’s harsh anti-immigrant law. In his opinion Scalia not only railed against alleged dangers undocumented persons pose to Arizona, but also ruminated about state sovereignty and took a shot at President Obama’s actions on immigration policy.

As Campos and others note, Scalia simply cannot contain his partisan leanings. Campos thinks the justice “no longer cares that he sounds increasingly like a right-wing talk radio host rather than a justice of the Supreme Court ….”  

In part, Scalia complained in his dissent that if Arizona does not have the power to secure its borders with unconstitutional laws, “we should cease referring to it as a sovereign state.”

During the ACS Supreme Court Review, former U.S. Solicitor General Walter Dellinger also challenged Scalia’s off-the-wall take on state sovereignty.

Calling it the most “striking question” asked this Term, Dellinger cited Scalia’s question to the federal government, during oral argument in Arizona v. U.S. “What does state sovereignty mean if it does not include the right to defend your borders,” Dellinger read Scalia’s question from the oral argument transcript.

Well that implies, Dellinger said, that New York could forbid people from New Jersey “from coming into the state.”

The states, however, are not sovereign in the sense Scalia sees them, Dellinger said.

For instance, he noted, “They can’t coin money, they can’t have an army, they can’t have a navy, they can’t engage in treaties, they can’t make a compact with another quasi-sovereign, without the express permission of Congress. Those are not attributes of an entity that has sovereignty. But the notion that a justice could think that controlling the borders of the state is an attribute of sovereignty that a state has, fundamentally transforms, I think, the nature of our Constitution.” 

UCLA law school professor Adam Winkler, in a piece for The Daily Beast, noted that “no state is sovereign over matters like immigration and naturalization, which the Constitution entrusts to Congress.”

Winkler concluded, “It’s becoming increasingly clear that Scalia is an originalist. He adheres to his own original and novel interpretation of the Constitution, unconstrained by history and steeped in Republican politics.”

The Daily Beast’s Michael Tomasky in an exceedingly enjoyable piece, also calls Scalia out for his immigration rant. As of Monday – “almost surely before, but without any question as of Monday – Nino Scalia wants precisely to be thought of as a politician in a robe. No other reasonable conclusion can be drawn from his churlish and self-aggrandizing and probably unethical tirade against President Obama’s recently announced immigration policy.”

There was also Scalia’s performance during oral argument in the Affordable Care Act case. As noted here, the justice revealed callousness toward the nation’s less fortunate and a disturbingly inept understanding of how the nation’s health care insurance market functions. 

Winkler, Campos, Tomasky and many others are providing a much needed service by trashing another tired conventional wisdom. These writers are not painting flowery pictures, they are reporting on a high court justice that is losing it.

[image via US Mission Geneva]