Leave Scalia Alone

The top story out of the recently concluded Supreme Court term was, of course, the healthcare decision. But a close second was the astonishing fact that Associate Justice Antonin Scalia is a conservative. And an asshole! So what?

Scalia should resign immediately, the Washington Post's E.J. Dionne wrote last week, for the crime of "ignor[ing] the obligation of a Supreme Court justice to be, and appear to be, impartial." The AP surveyed some liberal and conservative Court watchers yesterday, and found shock that some of the justice's comments were "seemed to some more political than judicial." The reason for all the dropped jaws was Scalia's denouncement, in announcing his opinion in the Arizona immigration case, of Obama's decision to allow some illegal immigrants to remain in the U.S. without fear of prosecution. On top of that, the AP writes, he also displayed an "aggressive demeanor during argument sessions," calling arguments he disliked "extraordinary" on no fewer than 10 occasions.

Antonin Scalia is a fat asshole. He has accumulated considerable power in his lifetime, and used it to immiserate the powerless and vulnerable. I hope he dies of gout.

That said, he is an undeniably sharp and effective advocate for his retrograde views. And, importantly, he is permitted to hold those views. While his assessment of the wisdom of Obama's immigration policy may be in error—though he clearly sneered at it, Scalia actually allowed that "perhaps" it was the right thing to do—it's not illegitimate. The appropriate response to the expression of such views is a rebuttal, not shock or disgust at the fact of their having been expressed.

Of course, Scalia is a judge, and so must conduct himself in a judgemanlike manner, never deigning to address anything other than purely judicial issues in an abstract and antiseptic fashion. He is being too "political," Dionne complains, and ignoring "rules and conventions" that most judges honor.

Aren't we a bit past this by now? The idea that judges are somehow above politics, or that they make their decisions without reference to base political debates, was thoroughly put to rest by Scalia and his cohorts in Bush v. Gore. I, for one, am thankful that he is willing to fully discard the shibboleth of judicial propriety and openly engage in naked politics. The "rules and conventions" holding that Supreme Court judges are supposed to dwell in an abstract, apolitical realm are a fiction, one that is routinely used to obscure partisan motives. It's refreshing and clarifying to see Scalia say, in essence, "Fuck it, I've had enough of the black guy."

Scalia's judicial "philosophy" is not some obscure, technical, internally consistent academic code. His view that Arizona ought to be able to do an end-run around federal immigration policy and his view that the health care mandate is unconstitutional and his view that Obama shouldn't let illegal immigrants go unprosecuted all come from the same general place: Republicanism. Would you rather have him copping to being a Republican, and behaving as such, or pretending that he's agnostic and dressing up identical behavior in fake impartiality?

Let him bash Obama from the bench. Let the liberal judges sing his praises. Let them show their spots, and stop pretending we're not all constantly engaged in a pitched, relentless, partisan battle for power, leverage, and resources. Then at least we'll know what we're dealing with.

[Image via Getty]