Supreme Court: How low can you go?
Justice Scalia’s partisan discredit to the court
By Editorial Board, WashPost, Wednesday, June 27, 1:59 PM
IN ALEXANDER HAMILTON’S memorable formulation, the federal judiciary is “the least dangerous branch.” Unlike Congress and the president, which make and execute the laws, respectively, the courts “have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Hamilton assumed that offering judges life tenure would encourage them to augment their modest power with moral authority — the intangible combination of legal expertise, persuasive reasoning, impartiality, independence and solemnity, actual and perceived, that we call “legitimacy.”
For many Americans, the Supreme Court’s decision on President Obama’s health-care reform poses a keen test of legitimacy. In an atmosphere of intense partisanship, made more acute by a pending national election, can these five Republican-appointed justices and four Democratic-appointed ones pass judgment in a way that impresses most Americans as an act of law rather than politics? We have maintained that they can, or at least that the justices should enjoy a presumption of good faith. But the recent behavior of one member of the court, Justice Antonin Scalia, makes that presumption harder to sustain.
In dissenting from a court ruling that struck down all but one part of Arizona’s law on illegal immigrants, Justice Scalia strayed far from the case at hand to deliver animadversions on President Obama’s recent executive order barring deportation of people who entered the country illegally as children. Based on nothing more than news reports, Justice Scalia opined that this policy would divert federal resources from immigration enforcement, thus creating “the specter” of a “Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude.”
(More here.)
IN ALEXANDER HAMILTON’S memorable formulation, the federal judiciary is “the least dangerous branch.” Unlike Congress and the president, which make and execute the laws, respectively, the courts “have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Hamilton assumed that offering judges life tenure would encourage them to augment their modest power with moral authority — the intangible combination of legal expertise, persuasive reasoning, impartiality, independence and solemnity, actual and perceived, that we call “legitimacy.”
For many Americans, the Supreme Court’s decision on President Obama’s health-care reform poses a keen test of legitimacy. In an atmosphere of intense partisanship, made more acute by a pending national election, can these five Republican-appointed justices and four Democratic-appointed ones pass judgment in a way that impresses most Americans as an act of law rather than politics? We have maintained that they can, or at least that the justices should enjoy a presumption of good faith. But the recent behavior of one member of the court, Justice Antonin Scalia, makes that presumption harder to sustain.
In dissenting from a court ruling that struck down all but one part of Arizona’s law on illegal immigrants, Justice Scalia strayed far from the case at hand to deliver animadversions on President Obama’s recent executive order barring deportation of people who entered the country illegally as children. Based on nothing more than news reports, Justice Scalia opined that this policy would divert federal resources from immigration enforcement, thus creating “the specter” of a “Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude.”
(More here.)
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