Civility and deference are encouraged, if not demanded, of licensed, practicing attorneys to sitting judges and justices of all courts both federal and state. I shall assume that since I have no matters before the United States Supreme Court, I, like Scalia, am entitled to exercise my free speech rights under the United States Constitution. I submit what some might consider obvious: Antonin Scalia is a buffoon…a clown…the Court jester. He has played this role for most of his 25 years on the bench (having been appointed by President Reagan) and is portrayed as such by many who have had the unpleasant experience of being a target of his ire during oral arguments or a recipient of his nasty grams sent through interoffice mail (Justice Sandra Day O’Connor reported her dismay at receiving these notes from Scalia as set forth in book, The Nine.)
So what makes today or this dissent different from the voluminous collection of dissents and concurring opinions previously set forth by Scalia?
In the 22 page rant-a-thon dissent in Arizona v. United States, 567 U.S. ___, (2012); dissent by A. Scalia, p. 20-22, this clown tears off his robe and purported non-partisan mask, and puts quill to paper with a full-frontal attack on President Obama and his administration. If I didn’t know better, I would say that Scalia was channeling his buddies, the Koch brothers, and some of the super-pacs that he and his fellow Justice Thomas are known to party with on occasion.
In my younger years of practice, I may have laughed at this lunacy, but I now find this man and his madness rising to the level and then surpassing those few who have come before him wearing the robes of the judiciary and have been censored or expelled for their unethical, vile or insane conduct. Believe it or not, there is a Code of Conduct. Do I believe that Scalia (or Thomas) would find themselves censured for their obvious violations of said Code? No. While I have witnessed state supreme court justices, federal and state judges removed and/or censured for violations of state and federal codes of conduct, it is inconceivable to me that this man or any of his colleagues would be brought up on charges of misconduct. Why? Because no one currently in Congress has the brass set to bring charges and even if one should draft a Resolution of Censure or begin an impeachment proceeding, there is absolutely no interest in starting that firefight by a GOP controlled House and a weak Senate.
So what am I raging on about? What did Scalia do that he hasn’t done in a hundred other dissents? As some are reporting, the dissent, in its entirety, ‘jumps the shark,’ but it isn’t his inconsistencies and outrageous claims of Arizona’s state sovereignty that cry out for his head on a stick, but the politicizing of a President’s executive policy put forth months after the oral argument held on April 25, 2012. And as is Scalia’s custom, following the announcement of the 5-3 opinion (Justice Kagan recused herself from this matter), Scalia read his opinion from the bench as if singing his favorite aria:
Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement—or, even worse, to the Executive’s unwise targeting of that funding? (Emphasis added).
And then ended with this:
It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30.
. . .The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the non-enforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.