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.
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This criticism of Scalia is coming from the usual claque of loud, Lefty law-prof types who, unlike most of their colleagues—including most liberals indeed—clearly want to "educate" the public about their self-assessed better politics more than they do their students about the law. And it's funny that in doing so they're the ones so often doing exactly what they are so damning Scalia for in terms of going into politics. Yet, you don't see 'em damning old Justice Douglas who was infamous for talking about or referring to about the politics behind the laws he was judging; indeed he's on their pedestal. "Common sense" or "real world" law, they enthused about it. And yet another of their heroes—Brennan—wasn't immune from the practice either. Moreover, one thing you *never* see them condemn is the idea that it's totally fair game for the Courts to examine the *intent* behind laws to see if there's a whiff of some invidious, invalid reason behind it. The Courts do it *all* the time, and as an example of course you didn't hear them complaining when Justice Kennedy struck down some sodomy laws not long ago *expressly* based on his perception (no doubt accurate) that they were really aimed at gays. But Scalia here goes looking into the intent behind the law that the Obama Administration is arguing using the same sort of broader "real world" approach, and shazzam! There's damn near calls to impeach him. The fact is there's nothing new here that isn't done by the Courts all the time, except it's a Righty doing it in a way that's usually used by Lefties and doing it effectively, which is why it makes the latter so mad. Not to say that one might not like it or see it as inappropriate, but if you're really against it you gotta be against it when either side does it.