WASHINGTON, DC - OCTOBER 05:  Supreme Court Ju...

Antonin Scalia

A trendy right-wing talking point that was very popular around the times of the Elena Kagan and Sonia Sotomayor confirmation hearings was how deplorable the concept of “legislating from the bench” is, or how horrible a “activist judge” is. Essentially this means that a judge has not applied existing law or legal history and has instead applied their personal or political views and feelings to decide the outcome of a case. In fact, Justice Antonin Scalia has claimed that judicial activism upsets the balance of power between the three branches of government by granting drastically more power to the judicial branch.  Ironic, considering his recent opinions.

Just a little bit on Scalia history, he was appointed by the Republican Bronze Idol himself, Ronald Reagan, in 1986, and his nomination came shortly after a highly contentious SCotUS confirmation hearing – thus he faced much less scrutiny than many other prospective SCotUS judges have. He has criticized his fellow Supreme Court judges before in highly hyperbolic fashion, calling colleagues who disagree with him “perverse” or “irrational.” He’s also had controversial cases where he’s refused to recuse himself, most notably in a two cases; the Sierra Club vs. a federal fossil fuel task force headed by Dick Cheney, Scalia’s duck-hunting partner, and the now infamous Citizen’s United case where he was a personal guest of billionaire Charles Koch who was a zealous vocal and monetary supporter of Citizen’s United.

While behavior like that can be overlooked as it technically falls within the boundary of established guidelines and SCotUS precedent, two recent dissenting opinions written by Scalia show he has clearly decided his personal political feelings outweigh his responsibility of being an impartial reviewer of established law. In June Scalia penned the dissent in Arizona v. United States and said that the role of the state should outweigh the role of the federal government in immigration cases because in the first 100 years of our country’s history states had vast experience in dealing with non-citizens crossing state lines. Lest you be behind on your history, let me remind you that a massive percentage of “immigration” in the US from the late 1700’s to the mid 1800’s dealt with African American slaves moving throughout the Southeast US. Even if he had cited specific non-slave times when states where better equipped to handle immigration than the Federal Government, article 1 section 8 of the US Constitution states Congress is responsible for naturalization, the most commonly used term for immigration in the 18th century.

Second was his dissent on the Affordable Care Act, widely known as “Obamacare.” In the dissent he says that the Supreme Court accepts Congress’ power to tax those who don’t have health insurance yet can afford it (the individual mandate) is akin to Congress having power to “force” you to participate in Social Security simply because you “breathe in and out.”  I.E. Scalia is taking a widely accepted and proven safety net from the time of the Great Depression and more or less calling it totalitarian. I suppose he forgot that political and economic misfortune caused hundreds of thousands of elderly to die a lonely cold death before Social Security existed. Later in the dissent he says that because the individual mandate should be thrown out, the whole law should get thrown out. The last time I heard an argument like that was in the movie “Animal House” when Otter was arguing Delta’s right to exist in front of the Student Court.

If Scalia keeps this up, I’ll hold him in about as high intellectual regard as Delta House.

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Zarberg is a member of The Political Observers, a sub-group of our writers who are devoted to topics that are political in nature. Zarberg provides a liberal viewpoint in his articles.

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