Washington — Justice Antonin Scalia drew unusually critical attention during this past Supreme Court term for comments he made in court and in his writing that seemed to some more political than judicial.
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.
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, said the term’s high-profile cases may explain why Scalia “called counsel’s argument ‘extraordinary’ no fewer than 10 times.”
The 76-year-old Scalia is a gifted writer with a razor wit and willingness to do battle with those on the other side of an issue. Those qualities have made him a powerful voice, an entertaining presence and a magnet for criticism on the court for more than 25 years. Even with that vivid background, some of Scalia’s recent remarks stood out in the eyes of court observers.
Ten lawyers who appear regularly before the Supreme Court, including two former Scalia law clerks, were interviewed for this story and said they too had taken note of 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.
Measured by wins and losses, the court term did not end well for 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 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, 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,” Scalia said.
The outcry over his reference to Obama’s announcement was immediate and included a call by liberal Washington Post columnist E.J. Dionne for Scalia to resign.
Scalia’s defenders say the criticism is misplaced. They say the justice was doing something much more familiar and common, attacking the majority opinion by Justice Anthony Kennedy. “He really wasn’t criticizing the Obama administration’s position. He was just using it as a timely example of why he thought his position was the better one in the Arizona case,” said Brian Fitzpatrick, a Vanderbilt University law professor who once served as a law clerk to Scalia.