Skip to main content

Antonin Scalia
Justice Antonin Scalia
Jeffery Toobin notes another way Justice Antonin Scalia's bizarre dissent over striking down most of Arizona's SB 1070 went off the rails:
[W]hat authority did Scalia cite for his broad conception of the role of the state? He went back into history to examine the role of states in policing immigration. He pointed out that
In the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. State laws not only provided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration.
It’s worth pausing to remember what kind of immigration the states (especially the Southern ones) handled in those bygone days; much of it had to do with slavery, of course.
Yes, one of Scalia's justifications for why Arizona should have more say in enforcing (their own version of) immigration laws than the federal government is to cite the onerous travel restrictions put on freed black slaves in the southern states. If nothing else, you can't say that Scalia isn't an originalist, I suppose, since he would put more stock in pre-and-post Civil War jurisprudence than he would on any stuffy modern notions of what individual states should or should not be allowed to do to black people.

As I've said before, though, I don't think this really reveals anything deep about Scalia's core values. His core values in these last years have consisted of deciding the case at hand in the way he wants to decide it; any resulting argument is purely for show, and might not ever be mentioned again. These wide-ranging, contradictory arguments get him branded an intellectual, in the same way that Paul Ryan not being able to master grade school mathematics is considered intellectual.

Note that Scalia has already signaled that he's going to be jettisoning "some" or "many" of his own previous legal theories entirely, rather than be constrained by it in the upcoming Affordable Care Act decision. That's not the sign of deep judicial wisdom or intellectualism—at best, it's mere hackishness. And that's the best-case scenario. No matter what the court decides on this or any other case, it seems clear that Scalia is personally becoming his own one-man Constitution, and he can't even get his own original intent straight from one case to the next.

Originally posted to Daily Kos on Tue Jun 26, 2012 at 11:20 AM PDT.

Also republished by Barriers and Bridges.

Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags


More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site