Even Scalia's Dissenting Opinions Get Major Scrutiny Justice Antonin Scalia's dissent in the Arizona immigration case led a noted liberal to call for his resignation, and a fellow conservative jurist likened it to a "campaign speech." But during a quarter century on the high court, the colorful Scalia's writings — even in the minority — have sometimes steered the court.
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Even Scalia's Dissenting Opinions Get Major Scrutiny

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Even Scalia's Dissenting Opinions Get Major Scrutiny


Even Scalia's Dissenting Opinions Get Major Scrutiny

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From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish.


I'm Robert Siegel. And we begin this hour with the Supreme Court - not with rulings, but with dissents. In the final tumultuous week of the court's term, one justice stood out for his dissents - Antonin Scalia. His was the first name on the joint dissent in the health care case, but it was Scalia's dissent in the Arizona immigration case that drew harsh criticism, as we hear from NPR legal affairs correspondent, Nina Totenberg.

NINA TOTENBERG, BYLINE: Scalia's outrage has rung out from the Supreme Court bench for 26 years.

JUSTICE ANTONIN SCALIA: Does the deck seem stacked? You bet. The decision - the court thus proclaims itself sole arbiter of our nation's moral standards. In the court, the capital defendant who feigns mental retardation risks nothing at all.

TOTENBERG: This term, Scalia's angriest dissent came when the court struck down much of the Arizona law aimed at more severely punishing illegal immigrants than is permissible under federal law. The crux of Scalia's dissent was that states have sovereignty under the Constitution to enact their own immigration laws. Arizona, he maintained, acting constitutionally in creating new penalties and increasing the penalties for federal immigration violations.

Scalia went on to blast the Obama administration for what he called its refusal to enforce the nation's immigration laws. He derided the president's initiative to allow children brought to the U.S. illegally by their parents to stay in the here under certain circumstances, an issue that was not before the court. Neither of the other two dissenters joined Scalia's opinion.

TOM GOLDSTEIN: Justice Scalia, by the end of the term, was apoplectic. That might not be accurate because it might be an understatement. But that is his wont.

TOTENBERG: Tom Goldstein is publisher of SCOTUSblog, the leading Supreme Court blog.

GOLDSTEIN: Justice Scalia cares so passionately about these issues that he wears his heart on his sleeve and the blood runs through his pen.

TOTENBERG: But the clamor of criticism over the immigration dissent was unusually widespread. Liberal columnist E.J. Dionne called for Scalia's resignation and conservative Judge Richard Posner called the dissent unmoored from the facts.

JUDGE RICHARD POSNER: It gives that part of the opinion the air of kind of a campaign speech.

TOTENBERG: But while critics sometimes see Scalia's outrage as outrageous, at other times, he can be prescient, even seeing his dissents become, years later, transformed into majority opinions. Some of Scalia's most irate dissents involve abortion and homosexuality. Here he is dissenting in 2000, when the court voted 6 to 3 in favor of buffer zones at abortion sites in order to protect women from being harassed.

SCALIA: Does the deck seem stacked? You bet. The decision in the present case is merely the latest of many aggressively pro-abortion novelties announced by the court in recent years.

TOTENBERG: In 2003, Scalia again erupted when the court struck down a Texas law that made private homosexual conduct a crime. The Constitution, he contended, leaves it to the legislature to decide what conduct is a crime, and if the basis for that is morality, well, all the better. After all, he observed, morality is the basis for criminal laws against polygamy, adultery, incest, bestiality and obscenity.

SCALIA: This effectively decrees the end of all morals legislation. It is clear from this that the Court has taken sides in the culture war and, in particular, in that battle of the culture wars that concerns whether there should be any moral opprobrium attached to homosexual conduct.

TOTENBERG: While the court majority stressed that its decision had nothing to do with same-sex marriage, Scalia replied...

SCALIA: Do not believe it. Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions.

TOTENBERG: Scalia's view has been proved, to some extent, right since the issue of same-sex marriage is expected to be before the Supreme Court next term. The death penalty, too, has provoked strong Scalia dissents. Each time the court has moved to limit the reach of the capital punishment, for juveniles or the mentally retarded, for instance, Scalia is in full-throated disagreement. Here he is 2002, on the question of the death penalty for defendants with mental retardation.

SCALIA: What today's opinion says is that he cannot receive the death penalty, no matter how many people he tortured to death, no matter how much the jury believes he knew precisely what he was doing.

TOTENBERG: And in the juvenile death penalty case, Scalia got out his scalpel, noting that the American Psychiatric Association had one view about the maturity of juveniles when the issue was the death penalty and a different view 15 years earlier, when the issue was whether minors should have to notify their parents before getting an abortion.

SCALIA: Which takes greater maturity, do you suppose? Deciding whether to have an abortion or deciding whether to throw a live and conscious woman to her death over a bridge?

TOTENBERG: Not all of Scalia's dissents are on the conservative side. In the aftermath of 9/11, the first Supreme Court ruling on indefinite detention of those seized on the battlefield involved an American citizen. The court plurality ruled against the Bush administration, but left room for indefinite detention of American citizens without trial. Not Scalia. The Supreme Court, he maintained, has no power to do that. The court's only power, he said, is to order the prisoner tried under the normal criminal law, or released.

Quoting the famous legal authority William Blackstone, he alluded to the tyranny of government violence.

SCALIA: But confinement of the person by secretly hurrying him off to jail where his sufferings are unknown or forgotten is a less public, and therefore a more dangerous engine of arbitrary government.

TOTENBERG: Then, too, there are the dissents that presciently forecast events. Perhaps the best example was his solo dissent in 1988, when the Supreme Court upheld the constitutionality of the independent counsel law, a statute enacted after President Nixon fired the special prosecutor appointed to investigate Watergate.

Under the subsequently enacted law empowered a three-judge court to appoint an independent counsel to conduct serious investigations of high-ranking administration officials. While the Supreme Court upheld the statute, Scalia alone saw it as a dangerous curb on executive power that would lead to unaccountable prosecutors bringing politically motivated cases. What if the judges with the appointing power have partisan motivations, he postulated.

What if they appoint a prosecutor who's antagonistic to the administration or the person under investigation? There is no remedy, he said, not even a political one. Republicans and, later, Democrats agreed with that assessment. They eventually let the law expire. Finally, there are Scalia dissents that, over time, become the basis for majority opinions. Consider, for example, campaign finance law, and Scalia's dissent from a 1990 decision upholding a Michigan ban on corporate spending in state elections.

SCALIA: Despite all the talk in today's opinion about corruption and the appearance of corruption, it is entirely obvious that the object of the law we have approved today is not to prevent wrongdoing, but to prevent speech. The premise of our system is that there is no such thing as too much speech.

TOTENBERG: Two years ago, Scalia saw that dissent transformed into the law of the land. A new conservative majority struck down a long-held legal understanding that barred corporate and labor campaign spending on candidate elections. For the first time in a century, the court declared that corporations were people for purposes of campaign spending and free to spend as much as they want in candidate elections.

That may be a pattern that's repeated next term when the court is expected to consider a variety of controversies where Scalia is more likely to prevail than he did this year. In the meantime, for those who wring their hands over the justice's impassioned, even occasionally intemperate dissents, one could imagine Scalia's reply - get over it.

Nina Totenberg, NPR News, Washington.

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