The State Of Scalia’s Mind Tells The Score

Even as Arizona Governor Jan Brewer attempted to paint a rosy picture of the Supreme Court’s decision to negate most of SB 1070—she clumsily argued that the Court upheld (possibly only temporarily) the “heart” of the law (the “papers please” provision)—pundits were debating just who came out ahead politically, the President or his adversaries.

Well, there are two good ways, in matters like this, to figure out who won. One way is to listen to the President:

I am pleased that the Supreme Court has struck down key provisions of Arizona’s immigration law.

And the other way is to listen to President Obama’s most prominent adversary on the Supreme Court, Justice Antonin Scalia. The conservative justice does not like judicial activism, except when he uses it himself, and in his dissent today he certainly took note of Mr. Obama’s executive activism via Homeland Security’s recently announced program to exempt some folks from immigration law 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 [sic] by enforc­ing applications of the Immigration Act that the President declines to enforce boggles the mind.

Now, whenever Justice Scalia has his mind boggled, that is a win for the good guys, I don’t care what Jan Brewer says.  And when Scalia writes stuff in dissent like the following, the good guys have reason to celebrate:

…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…

Arizona has moved to protect its sovereignty—not in contradiction of 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.

The reason these words from Scalia are so sweet, and filled with irony, is because of another decision today by the Court, one that hasn’t received that much attention:

WASHINGTON — The Supreme Court on Monday turned away a plea to revisit its 2-year-old campaign finance decision in the Citizens United case and instead struck down a Montana law limiting corporate campaign spending.

In case you don’t remember, this case centered on whether the state of Montana could keep enforcing a 1912 law that placed political campaign spending limits on corporations. One would think that a purist-jurist like Scalia, who fretted so much over “state sovereignty” in the Arizona SB 1070 case, would give the benefit of the doubt to Montana.

Nope. And that is part of the reason why Scalia’s pissed-off prose over Arizona’s plight is so damned telling.



  1. Indeed, Duane, you have offered strong evidence that Scalia’s decisions are motivated not by logic but personal animus. In a similar telling instance I made the mistake yesterday of raising this same subject to a conservative acquaintance who responded with an angry accusation that “Obama will probably get the decision he wants because he’s gotten everything he wants so far!” Disregarding the fact that the statement is false on its face, with him and with Scalia it’s not a matter of right or wrong, it’s not a matter of rationality, it’s simply personal because Obama is the “enemy”. It’s damned discouraging, but that’s the level to which political discourse has sunk.


    • The more I have thought about what Scalia has done, Jim, the more depressed I get. Oh, I don’t get depressed because of Scalia’s tantrums, which were clearly political and directed at the President, but which were not unexpected if you have followed his career.

      I get depressed because of what Scalia (and Thomas, too) are doing to the institution of the Supreme Court. It is now impossible to believe that Scalia and Thomas are capable of rendering judicial opinions that are independent of their extremist Tea Party politics and their obvious affection for the Republican Party, a vehicle which the Tea Party now firmly controls.

      It is the Court that suffers from such blatant politics, and if Thursday’s expected decision on the ACA is not at least a 6-3 affirmation of the constitutionality of that law, then I’m afraid it will be a long time until the Court can overcome its shame, which began with Bush v. Gore and, up until now, culminated in Citizens United and its affirmation in the Montana case yesterday.

      And think of this: If Romney wins, he would easily name two and maybe up to four justices! It’s enough to make you sick.



  2. ansonburlingame

     /  June 26, 2012

    To all,

    EVERY voting Justice upheld the “papers please” portion of the AZ law, everyone of them. The only remaining debate will be over the “reasonable suspicion” rational for asking for “papers”.

    In that majority (unanimous) view any State or local law enforement authority can investigate the legal residency of someone breaking another law, initially. The primary method to do so is for State and local authorities to work WITH federal authorities to pursue that investigation. In other words SCOTUS in a unanimous opinion expected all law enforcement authorities to cooperate, work together, to determine the legality of the residency in the U.S. for a lawbreaker of other unrelated laws.

    But what did Obama do three hours after the SCOTUS ruling? He ordered his federal law enforcement authorities to STOP cooperating with AZ state and local authorities! Now if an AZ law enforcement agency calls ICE to attempt to determine the residency status of ANYONE, ICE has been directed to not cooperate in such an investigation.

    Call it “if you ask, we won’t tell” interpretation of the SCOTUS ruling, again a unanimous ruling.

    Is such an immediate and obviously carefully planned reaction to a SCOTUS ruling going to create a Constitutional crisis? Taken in context with the EO last week to IGNORE a law on the books are the two attempts by the Administration to circumvent the laws of the land going to bring us to the point of a major constitutional debate during an election campaign?

    Then add in the potential coverup involved in Fast and Furious and we have all sorts of Constitutional issues on our collective plates now. If the alleged crime is lying to Congress, what is the difference between a Nixon set of tapes or Obama stack of emails or other documents?

    I can’t wait to see what Obama and his cohorts have up their sleeves IF SCOTUS strikes down the HC insurance mandate on Thursday? But whatever it is, I hope to God it does not become ANOTHER issue related to separation of powers or the suggestion of an “Imperial Presidency”. We are still recovering from Watergate. We do not need another round such as that one for all of our sakes.



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