Justice Scaila Got It Right In Arizona vs. US


President Ronald Regan appointed Antonin Scalia to the Supreme Court (COURT) as an Associate Justice in 1986. As a candidate for the nation’s highest court Justice Scalia’s credentials were impeccable by anyone’s standards. Justice Scalia excelled at all the universities that he attended. At Harvard Law School he was the footnote editor of the Law Review.  He worked with distinction in private practice and for the governmental. Before assuming his duties on the COURT, Justice Scalia taught at various well-known law schools. He sat on the bench of the Federal Appeals Court. Even his distracters would agree that he has a quick mind and an ability to eloquently and forcefully express his thoughts in writing. I think it is fair to say that Justice Scalia is well qualified to sit on the Supreme Court.

On June 25, 2012 the COURT decided the much talked about immigration case of Arizona v. United States. The Court ruled by a 5-3 majority that three parts of the Arizona Statute (SB 1070) was in conflict with federal law and thus unconstitutional.  Justice Kennedy wrote the opinion for the majority which upheld Arizona’s right to question properly detained persons about their immigration status. I believe that the COURT correctly decided the case.

In the case Justice Scalia wrote a scathing dissent. In an unusual move he also discussed some of its key points in open court. Justice Scalia did not mince his words in criticizing the majority’s decision and President Obama’s recent executive order to pardon millions of undocumented aliens.  Justice Scalia remarked that the delegates who attended the constitutional convention would have fled from Independence Hall if the States would not have had the right to control immigration into their borders. The delegates would never have agreed to give the President the right to enforce the nation’s immigration laws at his discretion. The quick-witted Scalia noted that by passing a state immigration law Arizona had “moved to protect is sovereignty—not in contradiction of federal law, but in complete compliance with it.” Justice Scalia stated that President Obama’s Executive Order to end the deportation of many young adults brought into this country “boggles the mind.”

Before the Supreme Court Justices could retire from the courtroom, the commentators and pundits had began to criticize Justice Scalia for being too political. The well-known and respected Washington Post opinion writer, E.J. Dionne Jr. , demanded that Justice Scalia resign. Mr. Dionne believed that it was improper for the Associate Justice to jump into the political argument over President Obama’s immigration decisions. The Washington Post writer believes that Scalia’s arrogance causes him to lose sight of long-established rules of judicial impartiality and temperance. Writing about Justice Scalia’s remarks, Mr. Dionne stated that “…it was a fine speech for a campaign gathering, the appropriate venue for a man so eager to brand things he disagrees with as crazy or mind-boggling.”

I am amazed at the misdirected criticism of Justice Scalia’s pointed dissent. Importantly; the logic of his reasoning, on legal and practical grounds, is solid. None of those who rushed to criticize him have had the courage to debate the logic or correctness of his statements. The people of Arizona are fighting for their sovereign territory. In the midst of this struggle to control the influx of illegal aliens the President of the United States grants an amnesty to the very people who Arizona is trying to control. I am sure Justice Scalia understands that sooner or later the legality of President Obama’s Executive Order is going to make its way up to the COURT.

The deliberations that the Justices had while considering Arizona’s law had to have been contentious. Justice Kennedy must have commented that his opinion would mention, if in an indirect matter, President Obama’s action to pardon so many young undocumented aliens. In page 4-5 of the majority decision, Justice Kennedy does in fact allude, though not by name, to President’s Obama’s actions on immigration. Justice Scalia’s dissent and public comments were partly in response to his brethren’s political support for the President.

In his dissent Justice Scalia actually demonstrated his disdain for the entry of politics into the Supreme Court’s deliberations. This fact is conveniently overlooked by his critics.

It must be remembered that oral arguments were heard and the parties’ legal briefs were submitted months before any deliberations had taken place. Various organizations, scholars and governmental officials also submitted amicus curiae briefs. Before reaching the COURT the case had been litigated in the lower courts. Consequently the law and issues had been well defined for the Court’s consideration.

In an effort to boost his appeal with Latino voters and to hedge his bets against any possible adverse ruling of the COURT President Obama who is a well-respected jurist decided to stack the cards in his favor; he issued the above mentioned Executive Order staying the deportation of millions of undocumented aliens. If the Supreme had ruled in favor of Arizona its decision would have been rendered largely moot by the President’s order. In light of this obvious political interference (a second time) I believe that Justice Scalia’s remarks were quite tempered. Justice Scalia’s detractors should turn their attention to President Obama.

The Supreme Court Justices had to wrestle with the question of what to do with the case in light of President Obama’s Executive Order. Justice Scalia was keenly aware of the awkward position the President had put the COURT and was not afraid to voice his displeasure. The Justices could have stopped their deliberations and remanded the case back down for further proceedings that would incorporate and consider the President’s executive action. Basically; the case could have been litigated de novo. I believe that this action was well within the COURT’s power. However, if the case had been remanded for further consideration a political as well as a constitutional crisis could have ensued.

The COURT occupies are a very special place in this country’s process of government. The highest court in the land sits atop of the judiciary branch of the federal government. Decisions handed down by the COURT constitute the last word on the law as it is applied to every part of the country. The US government is divided into different branches that balance the powers of the others. Political theorists argue that this “balancing of powers” between the Executive, Legislative and Judiciary prevents any one branch from accumulating too much power.

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