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'Intolerable Blowhard' Scalia's Dissent Embarrassed Court: Critics

By Deanne Katz, Esq. on June 28, 2012 | Last updated on March 21, 2019

Supreme Court justices are expected to be slaves to the law and to ignore the political issues when making their rulings. Most of the time, they accomplish this goal, sometimes to the dismay of the losing side.

But in the Court's decision on the Arizona immigration law, Justice Antonin Scalia is being criticized for his perceived focus on Obama's immigration policies over the case itself.

Critics are blasting Scalia's dissent, which he read in open court, and calling him all kinds of names: 'Intolerable blowhard' in Salon, 'Splenetic hyperbol[ist]' by The New Yorker.

Those are fighting words and they may just miss the point.

Scalia is a known textualist and beyond that, a state's rights advocate. His opinions often hark back to the meaning of words or phrases at the time of the Founding Fathers.

One of the criticisms in Scalia's dissent is that he disagrees with the federal government's right to set immigration policy over the needs or wants to states. Scalia's dissent indicates that if the executive branch chooses not to enforce certain pieces of immigration law, that state's should have to right to protect their borders according to the ABA Journal.

This view may be frustratingly anachronistic, as pointed out by The New Yorker. Scalia's dissent seems to ignore the 150+ years of American history since the Civil War when federal power won over state's rights.

But Scalia's opinions and dissents, even dating as far back as the controversial Casey v. Planned Parenthood, have supported state's rights over federal power. The real issue with his dissent lies in something else.

What critics seem to be most upset by is Scalia's reference to recent executive actions in his dissent, and that complaint is hard to ignore.

In his dissenting opinion, Scalia makes direct reference to President Obama's recent immigration policy. He clearly dislikes Obama's decision to offer citizenship to certain undocumented youth and refers to it in his dissent in the Arizona case, according to Salon.

This reference to political actions that took place long after the Arizona case was argued seems particularly distasteful to both Salon and The New Yorker. Not only is it unbecoming of a justice to rely so heavily on facts outside the case, but it also dilutes Scalia's dissent.

Both articles bemoan the fact that Scalia, once a well-respected if ostentatious legal jurist, seems sounds more like a right-wing editorialist.

Justice Antonin Scalia has always been a polarizing force given the sting of many of his opinions, concurrences, and dissent. His focus on Obama's immigration policy in this recent dissent may have crossed a line but his critics may also have underestimated his continued presence.

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