The Washington Post’s opinion (in full):
By Editorial Board, Published: June 27The Washington Post
IN ALEXANDER HAMILTON’S memorable formulation, the federal judiciary is “the least dangerous branch.” Unlike Congress and the president, which make and execute the laws, respectively, the courts “have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Hamilton assumed that offering judges life tenure would encourage them to augment their modest power with moral authority — the intangible combination of legal expertise, persuasive reasoning, impartiality, independence and solemnity, actual and perceived, that we call “legitimacy.”
For many Americans, the Supreme Court’s decision on President Obama’s health-care reform poses a keen test of legitimacy. In an atmosphere of intense partisanship, made more acute by a pending national election, can these five Republican-appointed justices and four Democratic-appointed ones pass judgment in a way that impresses most Americans as an act of law rather than politics? We have maintained that they can, or at least that the justices should enjoy a presumption of good faith. But the recent behavior of one member of the court, Justice Antonin Scalia, makes that presumption harder to sustain.
In dissenting from a court ruling that struck down all but one part of Arizona’s law on illegal immigrants, Justice Scalia strayed far from the case at hand to deliver animadversions on President Obama’s recent executive order barring the deportation of people who entered the country illegally as children. Based on nothing more than news reports, Justice Scalia opined that this policy would divert federal resources from immigration enforcement, thus creating “the specter” of a “Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude.”
This gratuitous outburst, regarding a matter that might someday come before the court as a legal case, followed Justice Scalia’s performance during oral arguments on health care, which included a wisecrack about striking down the “Cornhusker Kickback” — even though that infamous dollop of Medicaid money for Nebraska, allegedly inserted in return for the vote of that state’s senator, was no longer in the statute. He sneered that asking the justices to read the entire 2,700-page Affordable Care Act would violate the Eighth Amendment prohibition against cruel and unusual punishment. He launched into a muddled riff on an old Jack Benny comedy routine that became so protracted and distracting that Chief Justice John G. Roberts Jr., amused at first, eventually had to declare, “That’s enough frivolity for a while.”
Justice Scalia is nothing if not intelligent; his unpredictable approach to certain issues, especially free speech and criminal law, mark him as a less-than-doctrinaire conservative. And surely even the court’s proceedings can use a dash of humor every now and then.
But his lapses of judicial temperament — bashing “a law-profession culture, that has largely signed on to the so-called homosexual agenda” in a written dissent, or offering views on this and that in sarcastic public speeches — detract from the dignity of his office. They endanger not only his jurisprudential legacy but the legitimacy of the high court.
There you have it. The Washington Post has basically said that Justice Anthony Scalia discredits the nature and legitimacy of the Supreme Court. I agree. In fact, like E. J. Dionne, I believe it is time for him to resign. He is everything a Supreme Court justice should not be. It isn’t just his opinions. I grew up in the South. Seeing an “Impeach Earl Warren” sign every few miles is nothing. Those signs were based of ideology. Scalia’s behavior is what makes him a stand out and therefore inappropriate and unacceptable to serve on the Supreme Court. Scalia can remain on the high court for life, by law. The question becomes, should he?
Congress needs to legislate a few basic house rules for this small cadre of legal experts. Unfortunately, some of them have proven they simply are not capable of chaperoning or policing themselves.
They’re appointed by politicians for crap sakes! Conflict of interest?
Come on, SA, you know that back in the day, there was a lot more personal integrity about not showing partisanship.
But you are right. Look at the source. I think there need to be some laws that dictate how they are to act. The fact that Ginny Thomas is out there bashing health care to beat the band is just wrong. It wouldn’t matter what the issue was–any political issue. You give up that right for you and your spouse if you take the job. You can’t do that crap if you are the general’s wife either. You can…but your husband (or wife) loses his/her stars. Its a career stopper. A supreme court justice is for life. No stars to lose. Obviously not all know how to act.
I feel like our country has been taken over by a judiary who politics, a Congress who panders and campaign laws that makes money the one and only equalizer.
Jefferson would have been out. He was broke. That’s why he didn’t free his slaves. I am just depressed over politics. It is worse than I have ever seen it and I lived through politics which we all thought was the nadir of politics at the time. Watergate was nothing. Literally nothing.
Well, yes who could not have seen this coming and from that pillor of rational compromising political thought E.J Dionne (is that like H.J Heinz) Scalia’s crime – politics – or is it not really his dissent in the Arizona illegal immigration case and his expected voice in Obama case. Apparantly he should not have referred to the Obama Administration’s amnesty policy of no longer deporting “undocumented” immigrants. God forbid if he had opined on the Justice Department’s action in Florida demanding that undocumented and ineligable voters be put back (left) on Florida’s voting rolls.
The reason for the attack on Scalia is because he’s right. Scalia’s point is that Arizona didn’t write its immigration enforcement law to step on Federal toes; it did so because federal law isn’t being enforced and Arizona is paying the price more than other states. This seems to have been missed by those who seek those illegal votes, but then Chicgao is our kind of own. And let’s be clear here too — international progressives do not view citizenship in the US as legitimate; there should be no value to actual citizenship. If I can access welfare, jobs, health care, housing, not pay taxes, buy a car or have a credit card and can also vote for amnesty and even for more benefits what more do I need?
The real anger, however, comes from the executive order about 287, and that is that Scalia issued a very direct warning to the Administration that nullification is impeachable and could be an issue under a second term. That IMHO is what really set off the likes of E.J Dionne, given his religous commitment to the annoited one. The undocumented who fit the criteria have to apply, have to be verified, and have to go through the process again in two years. Its not about resources. And then there is health care which also requires a huge new bureaucracy. What was that you said Moon about our area benefiting from big government? There are times when someone faces personal attacks because they’re right. Given the intensity of Dionne’s rant, its clear that Scalia must be on to something.
THe Supreme Court Is supposed to be apolitical. Scalia is one of the few justices who has ignored that tradition and has Dragged pOlitics into the court. The court should be all about the law. WheN politics eNter, then it is no longer about the lAw. The the high court might as well be Congress. We have all seen how effective that is.
Congress makes the laws. The Supremee Court interrets the laws. The President applies and enforces the laws. Everyone has his/her job according to the Constitution.
It doesn’t matter what someone believes or doesn’t believe. Scalia was dead wrong, by all counts.
…and yet the SCOTUS holds a higher favorability rating than Congress.
So does Stalin. @marin
All kidding aside…what difference does it make what polls say? Frankly, I am pleased to not think like every other Tom, Dick and Harry.
I don’t even hate everyone in Congress. I like Senator Mark Warner, for example. I like Rep. Bill Young (FL). There might be a couple more I would let live if I were King.
Pack mentality has never been my thing.
Where did this idea that the SCOTUS is supposed to be apolitical come from? When has the Supreme Court EVER been apolitical? Woe vs Wade was political. Marbury vs Madison was a political power grab. Which worked. The Justices are allowed to voice their opinions.
Why this disrespect for a co-equal branch of government? He was pointing out the dangerous territory into which this administration is moving. He was warning them.
Cargo, why do you say Roe v Wade was political? Did one of the justices jump on a high horse and start admonishing others? Did any of those men work in womens rights or have their wives working in women’s rights?
How about Loving vs Virginia? Do you think that was political? How about brown vs bd of ed? Wasn’t that case unanimous?
@Cargosquid
As for the disrepect, it really isn’t his job to warn them or to admonish the president over not rounding up good students for deportation. It absolutely was disrespectful as well as political.
Is this where I ask if there is anything old Tony can do that you would applaud him for?
Scalia is not equal to the president, regardless of who it is. From an abstract point of view, once branch isn’t more powerful than the other. Co-equal leaves a false impression.
Roe vs Wade was political because the court INVENTED penumbras etc instead of pointing to constitutional law. It was the political thing to do.
Just like Dred Scott.
The branches are co-equal. The court is just as powerful, legally, as the President. The Congress is the third co-equal branch. The President is not “more equal.”
I think that you are asking is there anything old Tony CAN’T do…
So far, he hasn’t made a court decision, that I’m aware of, that I dislike. Those are the things that affect me. Verbal opinions are just wind.
That is done all the times. I believe privacy was addressed in Loving and Griswold before Roe.
Actually he is more powerful. There is one of him and 9 supremes. Let’s look at the office and the offices held. The executive branch is not more powerful than the Legislative branch and the judicial branch. In actuality, The president is the head honcho. Let anthony go call up the troops. You think they will listen?
I think we have to look at these heads as collectives, not indivuduals. In the case of the president, he is an individual.
There is no such thing as more equal. Oxymoron.
@CArgo,
He shouldnt be issuing personal opinions. It weakens the court and diminishes it.
“more equal” is a term from Orwell’s Animal Farm. That’s the context.
History will record the conspiracy of the bad kool-aid that was given to the Supremes over the last week or so. In the shadow Obamacare, the Supreme Court unveiled another unbeleivable decision today: Lying about receiving military honors – to include wearing the ribbons – is protected by the First Amendment.
A 6-3 ruling found the Stolen Valor Act, signed into law by President Bush in 2006, to be unconstitutional. The law makes it a federal crime to falsify a military honor, punishable by up to a year in prison. Justice Anthony Kennedy announced the court’s plurality opinion, saying that the Stolen Valor Act infringes on free speech rights.
This is wrong, politically, constitutionally, in terms of honor, in terms of accountability. It is going to cause the military to go nuts- they have protocols about some of this.
I guess they think free speech is free speech. If they think money = speech then I guess they think it is ok to lie a great deal. That is still speech.
I am disappointed but not surprised. After Citizens United, I guess any speech is allowed.
@blue
Go scroll through here. There’s apparently a better bill being written. Stolen Valor was overly broad.
http://thisainthell.us/
This blogger loves chasing down stolen valor idiots. He’s disappointed, but not too upset.
@ Cargo, Appreciate the refrence but its still a BS decision. This is not just a false statement of fact. Military people react to these things. The Court concluded that the Stolen Valor Act is unconstitutional because the Government had not shown that the statute is necessary to protect the integrity of the system of military honors – somebody on the government’s side – from Justice? screwed up badly. The standard that one must seek to benefit monetarilly from such a falsehood is not good enough. Its really is about honors earned.
@blue
Oh, I agree.
But its up to Congress to write laws that will hold up. I want a law that allows us to beat the everlovin’ crap out these people. Constitutionally, of course….
@Cargosquid
10-4 on the beatin and a short step off the tramsom late at night. Not sure we need a new law, some things you just have to fix yourself as the situation arises – constitutionally, of course. 🙂
This decision was political also, after cheating Gore out of the Presidency(Bush V Gore) and turning the election process over to the Corporations(Citizens United v. Federal Election Commission), a third obvious partisan decision would have even the dimmest of the electorate beginning to question the Supreme Court motives
Excellent point, Bear.
The one that bothers me the most however, is the impropriety shown in the Thomas family. Next would be Scalia pontificating and politicizing from the bench. Citizens United destroyed the country. Look at the mess out there, just this election. I can’t stand the phone calls and the commericals already. It is the end of June.
“Congress makes the laws. The Supremee Court interprets the laws. The President applies and enforces the laws. Everyone has his/her job according to the Constitution.”
Moon, do you realize you just highlighted one of the complaints with Obama. The part about the President applies and enforces the laws. Really, which president would that be? Certainly can’t be referring to this president.
Yes and every other president for the past few decades. They take on more and more executive privilege. I would say it is proportional to the more do-less Congress is.
I know people bellowed about Bush doing it too. I didn’t mind so much that he did it. I minded his buffoons doing it.
Cargo, I am going to give you one here…I think Harry Blackmun did do some lecturing on abortion rights around the country. Personally, I don’t think he should have. Once he was off the court, fine. While he was on the court. No.
Yep… that Gore sure got cheated….. especially since his illegal selective recount of pro-Gore Counties was cut short. Every recount by the media showed Bush winning….yep.. without the Supreme Court, he would have ……still lost.
Gore, that is.
going on a fishing trip with Cheney sort of demonstrates poor decision making skills when it come to the perception of partisianship.
Going on a HUNTING trip with Cheney demonstrates poor decision making…not fishing. 🙂
You’re right Cargo, there is nothing more comforting than knowing the “totally unbiased” media is counting / reporting on votes rather than the election officials.
Yep. The “unbiased” media..ie, a few newspapers that were actually supportive of the Democrats held independent recounts and found Bush to be the winner.