Justice Antonin Scalia’s tenure on the Supreme Court has been one of the most visible and influential of any in recent memory. I say this not as an admirer of Scalia’s interpretive approach to the Constitution (I am squarely in the Brennan-Blackmun-Ginsburg-Breyer camp), but rather as one who relishes vigorous legal argument, powerful persuasive writing, and strong reasoning. He may not have won over ideological opponents with his acerbic diction and often provocative turns of phrase, but certainly he has represented a point of view (namely, originalism in constitutional interpretation and rigid textualism in statutory interpretation) that has steadily gained traction in the legal community with intelligence, sharp wit, and even, on occasion, humor. A member of the court for the better part of the last three decades, Scalia has become something of a fixture of the conservative wing.
Although Article III of the Constitution says that federal judges serve “during good behaviour,” and thus receive lifetime appointments, it is perfectly common for justices to resign well before the natural expiration of their appointments (i.e., death). It is not only common, but healthy, for justices to critically evaluate the sensibility of their continued service on the court. Justice Souter retired in perfectly good health, and after a relatively abbreviated (compared to some of his more senior colleagues) period on the court (19 years). Sandra Day O’Connor and John Paul Stevens, too, were both recent members of the court to step down.
Antonin Scalia should follow their example. At age 76, he is the second-oldest justice currently serving on the court. (Only Ruth Bader Ginsburg, at age 79, exceeds him in years.) In the 5-3 opinion handed down this past Monday in Arizona v. United States, an appeal of the federal government’s lawsuit seeking to enjoin the enforcement of the draconian S.B. 1070 in Arizona (more commonly called Arizona’s “show me your papers” law), Scalia delivered an unprecedented piece of political commentary from the bench in which he roundly criticized the federal government’s immigration enforcement scheme and launched a thinly-veiled attack at the recent announcement by the Obama Administration that it will allow illegal immigrants brought in as children by their parents to remain in the country.
In his oral remarks from the bench, Scalia said the following: “The president has said 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 laws. 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 federal immigration law that the president declines to enforce boggles the mind.”
It is not the place of a federal judge, particularly a sitting Supreme Court justice, to opine about political issues which are wholly beyond the scope of the case at bar and how different social conditions “boggle the mind.” The outburst of nakedly political commentary is perhaps the most blatant disregard for judicial propriety the Supreme Court has seen in its recent history. And it is not as though the written dissent Scalia filed in the case was any more availing; the dissenting opinion was one of the least rigorous pieces of judicial writing I have ever read by Justice Scalia. His analysis of preemption doctrine was thoroughly lacking, and it was substituted with irrelevant citations to political science treatises that have no bearing on the legal issue to be decided whatsoever. As Washington Post columnist E.J. Dionne recently observed in an op-ed piece, “It was a fine [opinion] for a campaign gathering, the appropriate venue for a man so eager to brand the things he disagrees with as crazy or mind-boggling.”
Indeed, Justice Scalia seems to have lost not only his restraint, but also his capacity to strike a fiery tone while still engaging the canonical tools of impartial, objective legal inquiry. It is one thing to articulate a LEGAL opinion in a strongly-worded fashion; it is quite another to depart from the narrowly-defined legal issue presented in a case to embark upon a wider critique of social policy.
After twenty-six years on the Court, Scalia owes it to the institution to which he has contributed so much to do the right thing: resign.
Rainbow Gefilte Fish 