Mike Kueber's Blog

June 28, 2012

Antonin Scalia comes under attack

Filed under: Uncategorized — Mike Kueber @ 2:07 am

Antonin Scalia has always been my favorite Supreme Court Justice, not simply because he is reliably conservative, but also because he writes and thinks with such gusto.  He is the Justice most often cited by Republican presidential candidates as the kind of person they would appoint to the Court if they become president.  One of their misconceptions about Scalia by these candidates is that Scalia believes in strict construction.  As I previously pointed out in a blog posting, Scalia actually abhors strict construction and believes in something called textualism.   

Scalia came under a coordinated attack today by the Washington Post.  One its leading columnists, E.J. Dionne, Jr. penned a column demanding the Scalia resign because he had the audacity to question, during the announcement of the controversial Arizona immigration decision, President Obama’s executive order that exempted 1.4 million illegal immigrants from America’s immigration law because it was “the right thing to do.” 

Dionne seems to think that judicial decisions are made in an ivory tower and Justices don’t need to concern themselves with practical, ongoing political activities.  Of course, that sort of practicality is only offensive to Dionne when conservative jurists practice it.  He has no problem with a liberal jurist like William Brennan deciding in Plyler v. Doe (1984), based on practical considerations, to require the state of Texas to provide a free primary and secondary education to all illegal immigrants:

  • Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial ‘shadow population’ of illegal migrants – numbering in the millions – within our borders. This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents.  The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.”

It makes sense for Supreme Court Justices to understand what is going on in the executive and legislative and to consider those activities in rendering decisions.  Dionne’s column is mere partisan carping.

But the Washington Post was done with Scalia yet.  The paper’s entire editorial board penned a column titled, “Justice Scalia’s partisan discredit to the court.”  The Board cited not only Scalia’s comment about President Obama’s executive order, but also his colorful questioning during the ObamaCare oral arguments.  Apparently, the Board thinks that Scalia’s references to the “Cornhusker kickback” and the bill’s 2700 pages are unseemly and inappropriate.  More importantly, they threaten the dignity and legitimacy of the court, according to the Post.

As I noted at the outset, Scalia writes and thinks with gusto.  If that ever becomes disqualifying for a Supreme Court justice, that will mean the inmates are running the asylum.


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