The Lawless Supreme Court Justice

By Michael Tomasky, The Daily Beast

27 June 12

t has been widely assumed - including by yours truly - that calling Supreme Court justices "politicians in robes," as I did just last week counts as an insult. But 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. And while the court majority's ruling (from which Scalia of course dissented) represents a pretty solid victory for the Justice Department, the narrow win for the state of Arizona on the controversial "where are your papers" part of the law makes it quite possible that these very issues will come to the court again, after Scalia has taken his political position. Just as Zola famously said "J'Accuse!," I hope the liberal legal groups are already practicing saying "Recuse!"

The ruling itself wasn't half bad, for this court; it was one of those cases where Justice Kennedy woke up mostly on the right (that is, left) side of the bed. Justice Kennedy challenged the four key elements of the law: the one mentioned above, which requires that police officers seek to ascertain the status of people stopped under suspicion of commission of other crimes, even misdemeanors, if there's a "reasonable suspicion" the person may be an alien; one that forbids the "willful" failure to carry documents; one that makes it a misdemeanor for an unauthorized alien to seek work; and one that allows police to arrest a person without a warrant if the officer believes the person has committed a crime that makes him liable to deportation.

The last three were tossed: superseded by federal law, said the majority. The first one, the most controversial, was upheld, but only because the provision isn't being enforced yet. The majority said that state courts will have to determine how the provision works in practice, and then we can see whether it works or doesn't. Until then, it doesn't conflict with federal law, but challenges to this provision can be brought after it goes into effect. They undoubtedly will, and one imagines it will circle back to the court eventually.

Scalia wrote the main dissent, which you can read at the above link. Why shouldn't Arizona enforce whatever immigration laws it wants, he asked, when the federal government won't enforce federal laws? This would be news to the roughly 1.2 million illegal aliens the Obama administration has deported, but that of course wasn't the number Scalia had in mind. He meant the group - he said it was up to 1.4 million, using a previously cited number much larger than the administration's 800,000 - that was the target of Obama's directive from two weeks ago. And so the dissent includes some fairly caustic language about that program.

It's one thing to throw that into a written dissent. It's another to stand up in public and say it, knowing as he must have how that was going to be taken. As a rule, Supreme Court justices don't comment much on current events (and if they do, they usually do so elliptically). As a rule, Supreme Court justices never comment on matters that they have reason to think might come before them.

But the rules aren't for Scalia. He refused to recuse himself back in 2004 in the case involving the secrecy of Dick Cheney's energy task force. He had, you'll recall, gone hunting with Cheney (emerging, as far as we know, unscarred). I'm not naive enough to think for a second that Scalia's personal loyalty to Cheney was purchased with a few rounds of duck ammo. After all, the case was the one in which Cheney asserted that he was in essence beyond the law's reach, which is fine with Scalia if you're a conservative, ducks or no ducks. And of course he and Clarence Thomas are somehow allowed to attend highly political gatherings put together by the Koch brothers too, without any consequences. Did they appear between 2008 and 2010, when the court was hearing Citizens United, a time period during which the Kochs had pretty clear interests before the court? We'll never know. At the time this was in the papers, in early 2011, the Koch organization and the Supreme Court simply refused to answer journalists' questions, and that was that.

And what if, someday, the Obama immigration directive comes before the court? Even conservative blogger Ed Morrissey flagged this as problematic. Some GOP members of Congress have threatened to sue the administration over this directive. If Obama is reelected, they almost surely will, and the case may well get to the Supremes. Imagine, Morrissey wrote, that Ruth Bader Ginsburg inserted support for Obama's directive into an opinion: "You can bet that conservatives would be screaming for a recusal if/when a challenge to it came before the Supreme Court, and we'd be right to do so."

Morrissey's hypothetical, while heuristically instructive, is irrelevant, because Ginsburg would not do such a thing. The Court's liberals are nicely old-fashioned that way. They believe in the small-r republican virtues (even, at times, when it's naive to do so). But for the conservatives, and for Scalia most of all, legal propriety is absurdly quaint. He doesn't answer to a nation. He answers to a cadre, a vanguard, of which he is a cherished member, which is about as likely to say no to him as the College of Cardinals is to the Pope, and to which all outside criticism is the chirping of crickets. The crickets will be chirping awfully loudly in the coming days, and I hope at least that this self-satisfied martinet gets an ear-splitting headache.