Tomorrow is going to be rough.

Tomorrow is a big day. And in all likelihood, a very sad one for many people (like me) who would prefer that the Affordable Care Act not be overturned.

As the countdown gets closer to zero, more of the discussion surrounding the Supreme Court has turned to Justice Antonin Scalia‘s role on the court, and in American politics more broadly.

To put it gently, he is ruffling a lot of people’s feathers (including, perhaps, the injured falcon that almost clawed my face off about 20 minutes ago).

Now you can add to that list Judge Richard Posner of the Seventh Circuit, who is not too kind toward Scalia in his “Supreme Court Year in Review” column, published today on Slate.

Among other things, Posner criticizes Scalia’s “celebrity-type extrajudicial activities,” and he expresses uneasiness with the justice’s politicking. Let’s see exactly see what Posner has to say…

Judge Posner frames his discussion in the context of the Justice Scalia’s dissenting opinion in Arizona v. United States, which the Supreme Court handed down earlier this week. Judge Posner acknowledges that “Justice Scalia is famously outspoken” (shocker, right?), but wonders if that is really a positive quality in a Supreme Court justice. Because, for better or worse, “it seems correlated with an increasing tendency of justices to engage in celebrity-type extrajudicial activities.”

Posner specifically calls out Scalia’s concern, expressed within his opinion, about “the fact that the Obama administration recently announced a program suspending deportation efforts directed at more than 1 million illegal immigrants under the age of 30.”

Why? Well, the judge writes simply: “These are fighting words.”

It’s a highly contested election season, and illegal immigration is a key campaign issue. “It wouldn’t surprise me if Justice Scalia’s opinion were quoted in campaign ads,” he says. And, Posner notes that the program that upset Scalia wasn’t even announced until almost two months after oral argument in the Arizona case. “It seems rather a belated development,” Posner says, “to figure in an opinion in the case.”

All in all, it boils down to politics. (My colleague Elie Mystal is similarly concerned about the political overtones to Scalia’s public persona. Elie has been tweeting furiously all afternoon about what could happen in the Affordable Care Act ruling. You will definitely want to tune in for his comments tomorrow, seeing as they will probably be exciting/incredibly depressing. As a fellow editor, I must admit I’m a little worried about how he will handle the ruling.)

Going back to Slate, Posner quotes Justice Scalia again: “Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy.”

This claim doesn’t sit well with Posner either (don’t miss the kicker at the end of the block quote):

Arizona bears the brunt? Arizona is only one of the states that border Mexico, and if it succeeds in excluding illegal immigrants, these other states will bear the brunt, so it is unclear what the net gain to society would have been from Arizona’s efforts, now partially invalidated by the Supreme Court. But the suggestion that illegal immigrants in Arizona are invading Americans’ property, straining their social services, and even placing their lives in jeopardy is sufficiently inflammatory to call for a citation to some reputable source of such hyperbole. Justice Scalia cites nothing to support it.

As of last year there were estimated to be 360,000 illegal immigrants in Arizona, which is less than 6 percent of the Arizona population — below the estimated average illegal immigrant population of the United States. (So much for Arizona’s bearing the brunt of illegal immigration.) Maybe Arizona’s illegal immigrants are more violent, less respectful of property, worse spongers off social services, and otherwise more obnoxious than the illegal immigrants in other states, but one would like to see some evidence of that.

On the one hand, I’m glad Scalia is facing intelligent, well reasoned blowback from veteran, respectable judges. On the other hand, I wish it would have happened before the eve of Obamacare getting thrown on the trash heap.

Supreme Court Year in Review [Slate]


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