Consider the following harsh criticism of the Obama administration's recent decision not to initiate deportation proceedings against some young illegal immigrants who came to the United States as children and meet certain other qualifications involving educational credentials or military service. According to the critique, this decision constitutes a “policy choice of lax federal enforcement” and an indication that the administration's priorities “include willful blindness or deliberate inattention to the presence of removable aliens.” The critique continues that “federal policies of nonenforcement will leave the states helpless” before the “evil effects of illegal immigration.” The criticism goes on to say that the Obama administration is practicing “unwise targeting” of funding for federal enforcement activities. “The husbanding of scarce administrative resources can hardly be the justification” for the president's decision because—as the critique asserts, without supporting analysis or data—“considerable administrative cost” would be entailed in identifying those not subject to deportation.
Who is making this harsh attack on the president's policy? Any of the many Republican members of Congress in whose eyes Barack Obama can do no good? Perhaps a Republican border state governor such as Jan Brewer? No, the criticism is from Justice Antonin Scalia, in his partial dissent from a Supreme Court decision handed down on Monday. So presumably the legality of the administration's enforcement policy was the issue before the court? No, not at all. The subject of the case was a state law in Arizona and the issue was whether this violated the allocation of powers between the federal government and the states with regard to immigration.
Scalia is a brilliant intellectual combatant, and his excoriation of the administration 's immigration policy was on the face of it part of an argument about how less-than-total enforcement of a federal law supposedly opens up room for state enforcement on the same subject. But his polemical foray into a policy debate blatantly exceeded the bounds of judicial temperament and discretion. It demonstrated how far politically inspired judicial activism can go even when that activism is put in the service of upholding a questionable law rather than striking one down. As was noted in the New York Times's coverage of the court decision, “Scholars who have followed the work of the court for decades said they could not recall an instance similar to Justice Scalia's commentary on a political dispute outside the record of the case under consideration.”
Scalia will, of course, serve on the Supreme Court as long as he wants to. But this episode provides support for Jonathan Turley's idea, which deserves consideration for other reasons as well, to expand the Supreme Court. An expansion would dilute the impact of the excesses or idiosyncrasies of any one justice.