Scalia blurring Constitution's lines?

Critics deplore justice's remarks attacking Obama administration


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WASHINGTON -- Justice Antonin Scalia ended his 26th year on the U.S. Supreme Court with a string of losses in the term's biggest cases and criticism that he crossed a line from judging to politics.

Justice Scalia's willingness to do battle with those on the other side of an issue long has made him a magnet for critics. But some of his recent remarks stood out in the eyes of court observers.

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.

Justice 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, Justice Ginsburg said the term's high-profile cases may explain why Justice Scalia "called counsel's argument 'extraordinary' no fewer than 10 times."

Ten lawyers who appear regularly before the Supreme Court, including two former Justice Scalia law clerks, were interviewed for this story and said they, too, had taken note of Justice 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.

Justice Scalia, 76, has been a powerful voice and an entertaining presence since he joined the high court in 1986. Especially in dissent, he never has been shy about explaining why his side had the better of an argument.

Measured by wins and losses, the court term did not end well for Justice 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 Justice 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, Justice 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," Justice Scalia's opinion said.

The outcry over his reference to Mr. Obama's announcement was immediate and included a call by liberal Washington Post columnist E.J. Dionne for Justice Scalia to resign. Conservative Judge Richard Posner of the 7th U.S. Circuit Court of Appeals in Chicago, who was appointed by President Ronald Reagan, contributed this passage to Slate magazine's annual end-of-term discussion:

"These are fighting words. The nation is in the midst of a hard-fought presidential election campaign; the outcome is in doubt. Illegal immigration is a campaign issue. It wouldn't surprise me if Justice Scalia's opinion were quoted in campaign ads. The program that appalls Justice Scalia was announced almost two months after the oral argument in the Arizona case. It seems rather a belated development to figure in an opinion in the case," wrote Judge Posner, who had taken Justice Scalia to task in the past.

Doug Kmiec, a conservative legal scholar who backed Mr. Obama's election in 2008 and served as his ambassador to Malta, said, "To broadly assert, as Justice Scalia seems to do in his Arizona dissent, that the Obama administration's enforcement priorities are 'too lax' substitutes the unelected Antonin Justice Scalia for the elected Barack Obama."

Justice 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 Justice Scalia.

Separately, in defending the tough Arizona law, Justice Scalia's written dissent refers to the laws of Southern slave states that excluded freed blacks to support the notion that states had control over immigration in the era before Congress enacted national legislation. Liberal commentators seized on that reference as a particularly bizarre twist in an otherwise angry opinion.

But Justice Scalia's supporters say the justice is held to a different standard in the media than other justices. Justice Ginsburg, for instance, won wide praise when she used her dissent in a sex discrimination case in 2007 to urge Congress to take action to undo the court's decision.

During the three days of health care arguments in March, Justice Scalia spoke more than anyone else.

In an exchange with Solicitor General Donald Verrilli Jr., Justice Scalia left little doubt about what he thought of the eventual winning argument that the individual insurance requirement could be found constitutional under Congress' taxing powers.

"You're saying that all the discussion we had earlier about how this is one big uniform scheme and the Commerce Clause, blah, blah, blah, it really doesn't matter. This is a tax and the federal government could simply have said, without all of the rest of this legislation, could simply have said, everybody who doesn't buy health insurance at a certain age will be taxed so much money, right?" Justice Scalia asked.

Eventually, Mr. Verrilli said, "It is justifiable under its tax power."

"OK. Extraordinary," Justice Scalia said.

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