Okay, At This Point I Really, Seriously Have No Further Use for Justice Scalia

Supreme Court Justice Antonin Scalia has always had an interesting reputation. Yes, he's quite extreme on most issues, his reputation says, but he's not juts a partisan hack. He's a brilliant legal thinker who has a theory of constitutional interpretation in which he believes strongly. Sure, that interpretive theory leads him to policy results most of the time, but not always, and when it doesn't he owns up to it and follows his theory rather than his political ideology, and his theory helps him see certain flaws with traditional jurisprudence that no one else has any interest in pointing out. He may be a conservative, in other words, but at least he's got intellectual consistency.


Well, I say he's always had that reputation, but it's not really true. He used to have that reputation, but of late he's been fast using it up. When Scalia first got to the Court, that reputation was more or less true. He joined William Brennan's opinion in Texas v. Johnson (1989), holding flag-burning to be protected speech under the First Amendment, and he dissented alone from Mistretta v. United States (1989), which upheld the U.S. Sentencing Commission, and Morrison v. Olson (1988), which upheld the Independent Council Act. One can even find a few examples of this supposed intellectual integrity of Scalia's until pretty recently. I don't honestly think his concurrence in Gonzalez v. Raich (2005), upholding under the Commerce Clause federal regulation of privately-grown and privately-consumed marijuana, counts, since one can explain one apostasy from his policy preferences (limiting Congress's authority to regulate the economy) with another preference (anti-marijuana). His majority opinion in Kyllo v. United States (2001) definitely counts, though, as is held unconstitutional warrantless thermal imaging of a home under the Fourth Amendment--in a case where the defendant was growing pot! And--shockingly!--he dissented, along with Justice Stevens, from Hamdi v. Rumsfeld, which interpreted the Authorization for the Use of Military Force as a suspension of habeas corpus, writing that such a drastic measure had to be explicitly authorized in so many words by Congress. I say this is shocking because not giving rights to suspected terrorists is just about his favorite thing, and some of his dissents from cases which did give rights to suspected terrorists are entertainingly apoplectic. So this reputation of Scalia's isn't just made up, or anything; there are plenty of examples of his exhibiting exactly this kind of intellectual integrity.

But, well, no longer. It's been building for a while, actually; in my opinion, Chief Justice John Roberts has been a bad influence on Scalia, seducing him to the Dark Side of pure partisan hackery. I'm not going to provide a list of the cases that have made me gradually lose essentially all respect for Scalia. Instead I'm just going to give a few choice excerpts from his dissent in Arizona v. United States, a decision announced yesterday that struck down almost all contested provisions of Arizona's hateful immigration law. The most shocking part comes quite near the beginning:

"Notwithstanding "[t]he myth of an era of unrestricted immigration" in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks."

Yep. He actually said that. Now, what I want to know about this passage is, given that he already had three examples of such "classes of aliens," why bother mentioning the part about freed blacks? Going from three examples to four doesn't really strengthen his claim much, and appearing to cite as favorable precedent an aspect of the slavery regime in the antebellum South seems like needlessly inviting controversy. Was this just offensiveness for offensiveness' sake? It gets better, though, as a few pages later we get this gem:

"That is why there was no need to set forth immigration as one of the enumerated powers of Congress, although an acknowledgement of that power (as well as of the States' similar power, subject to federal abridgment) was contained in Art. 1, §9, which provided that "[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight..."

Um... what? He does know that this clause concerned the slave trade, right? That it was part of the original compromise over slavery, that Congress was prohibited from banning the slave trade for 20 years after ratification? (Which, of course, it did immediately upon gaining that power.) This... really isn't about immigration, dude. It's about slavery. See that word "importation"? That's a word you use for people conceived of as property.

This passage is ironic because it quotes a case that, among other Justices, Scalia himself helped overturn:

"It is beyond question that a State may make violation of federal law a violation of state law as well. We have held that to be so even when the interest protected is a distinctively federal interest, such as the protection of the dignity of the national flag, see Halter v. Nebraska, 205 U.S. 34 (1907), or protection of the Federal Government's ability to recruit soldiers, Gilbert v. Minnesota, 254 U.S. 325 (1920)."

Halter v. Nebraska, in upholding laws criminalizing the desecration of the flag, was of course overturned by Texas v. Johnson, in which Scalia provided the decisive fifth vote. And Gilbert v. Minnesota appears to have at least partially involved First Amendment claims of free speech and free exercise of religion, and similar cases upholding the federal government's power to suppress interference with recruitment are these days viewed rather skeptically.

Oh, and of course, here's this, where Scalia wantonly introduces a discussion of the Obama Administration's recent executive order regarding immigration:

"It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate "scarce enforcement resources"—is not the problem here. 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 individuals under the age of 30. If an individual unlawfully present in the United States [meets the criteria for exemption under this new policy] then U.S. immigration officials have been directed to "defe[r] action" against such individuals "for a period of two years, subject to renewal." The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference 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 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."

Of course, as he mentions, none of this had happened when this case was brought before the Court. This was not part of the case. This was what one might call a gratuitous potshot at President Obama. Legally speaking, it strikes me that the question of whether the general federal power over immigration preempts state action in the same area is completely distinct from whether the federal government has some particular program of broad-scale prosecutorial discretion in its immigration policy, and that therefore these remarks would be irrelevant even if the case had arisen after the executive order.

Now, Scalia's main actual legal argument revolves around the concept of "sovereignty." The very first sentence of his opinion is:

"The United States is an indivisible 'Union of sovereign states.'"

He's citing a 1938 case when he says that, by the way. Shortly thereafter:

"As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress. That power to exclude has long been recognized as inherent in sovereignty."

He then cites several centuries-old treatises on the law of nations to support this last sentence.

Later on, in arguing that an implicit preemption from federal activity in the same "field" of policy is insufficient to restrict a state's power of exclusion:

"We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants. We are talking about a federal law going to the core of state sovereignty: the power to exclude. Like elimination the States' other inherent sovereign power, immunity from suit, elimination of the States' sovereign power to exclude requires that "Congress ... unequivocally expres[s] its intent to abrogate," Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996) (internal quotation marks and citation omitted)."

Two things: it's interesting that there's only one other "inherent sovereign power" that the States retain, and that other power, immunity from suit, is explicitly and only protected by the Eleventh Amendment, which is very explicit in so protecting that power. Indeed, prior to the Eleventh Amendment the Court had held that the States lacked this power; that Amendment was passed to overturn that case, Chisholm v. Georgia.

Very shortly thereafter, in a strange passage about how the government is just trying to please foreign powers, this gem:

"Even in its international relations, the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sovereign powers."

Emphasis mine. Seriously. Yes, people have loved talking about "state sovereignty" for a long time, way back to before the big ol' war that should've buried that phrase along with the millions of its dead. But state independence? I'm pretty sure that one was buried by the Civil War, though I also don't think I can recall anyone talking about state independence between the Founding and the secession crisis.

So now we're left with this, at the end of the opinion, summarizing Scalia's radical and, to my knowledge, unprecedented (not just in Court opinions!) view of state sovereignty/independence:

"But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States' borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive's refusal to enforce the Nation's immigration laws?

"A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court's holding? Today's judgment surely fails that test. At the Constitutional Convention of 1787, the delegates contended with "the jealousy of the states with regard to their sovereignty." 1 Records of the Federal Convention 19 (M. Farrand ed. 1911) (statement of Edmund Randolph). Through ratification of the fundamental charter that the Convention produced, the States ceded much of their sovereignty to the Federal Government. But much of it remained jealously guarded—as reflected in the innumerable provisions that never left Independence Hall. Now imagine a provision—perhaps inserted right after Art. 1, §8, cl. 4, the Naturalization Clause—which included among the enumerated powers of Congress "To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate." The delegates to the Grand Convention would have rushed to the exits.

"As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that give rise to the suit. Arizona bears the brunt of the country's illegal immigration problem. 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 unwilling to do so. Thousands of Arizona's estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.

"Arizona has moved to protect its sovereignty—not in contradiction with federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent."

Well, yeah. We should stop referring to it as a sovereign state, 'cause the states are not in any meaningful way sovereign.

So basically, this opinion is crafted around a nonsensical legal premise, Scalia's wacky notion that the states are in some sense independent sovereign nations. To that it adds multiple completely random broadsides against the Obama Administration, and multiple distinct invocations of the legal apparatus of slavery as favorable precedents. This is basically, as I heard someone refer to it, full-on wingnut mode. As Adam Winkler puts it, quoted in this TalkingPointsMemo article,"Scalia has finally jumped the shark." I've said this a few other times over the past few years (actually, I think some of those were about his performance in the oral arguments of, well, this case), but this time will be the last time I say it: I've lost all respect for this guy. Whatever he may once have been, whatever virtues he may once have had, whatever principles his originalism may have once given him, it's all gone now. He's a partisan hack, and his flare for vitriol and scathing dissents is now being used for nothing but that hackery. It's pointless to think of Scalia as anything other than an angry old man who is going to rule on what I view as the wrong side of essentially every contested case, and who will give increasingly flimsy and sham-like arguments for doing so. I hereby give up on Antonin Scalia.

It's interesting to note, though, that it's starting to feel that he's not even really trying anymore. Not trying, that is, to couch his flaming rage in plausible-sounding legal arguments. I'm almost tempted to wonder whether he's started feeling like, whatever he may have accomplished and whatever he may accomplish yet, he's just not going to make the Court's jurisprudence look the way he wants it. Maybe he's becoming disappointed in Roberts' and Kennedy's penchant for caution and craftiness. Not, obviously, that they're not plenty conservative on a lot of issues, but Roberts' style is very distinct from Scalia's. In fact, he may be noticing that Roberts is supplanting him as the leader of the conservative side, and he may be getting kind of pissed off about it. Roberts joined the majority in this case, after all, and it's speculated he might abandon Scalia again in Thursday's health care ruling. In other words, I'm starting to wonder whether he's losing interest in the Court. It's probably wishful thinking, and given how strategic Justices tend to be in their retirements (and even, according to Steve Calabresi, in their dying!) it's probably a really long shot to think Scalia might retire during Obama's second term. But I'm starting to think the odds of replacing Scalia in the next four years are distinctly non-trivial. Here's hoping.