Bench Memos

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E.J. Dionne’s Anti-Scalia Tirade


In his latest column (to be published, I gather, in tomorrow’s Washington Post), E.J. Dionne declares that Justice Scalia “needs to resign from the Supreme Court.” You might think that a prominent commentator would be sure to get right the factual assertions on which he bases such a declaration. But you’re not E.J. Dionne.

Dionne cites three pieces of supposedly damning evidence against Scalia. The first, what “should be the end of the line,” is what Dionne calls Scalia’s “bench statement [in the Arizona immigration case] questioning President Obama’s decision to allow some immigrants who were brought to the United States illegally as children to stay.” According to Dionne, “Obama’s move had nothing to do with the case in question,” and “Scalia just wanted you to know where he stood.”


Although Dionne seems unaware of the fact, Scalia’s oral bench statement was drawn directly from his dissent. If Dionne has actually read Scalia’s dissent (available beginning at the 30th page of the Court’s set of opinions), he gives no sign of having done so. (He links to, and quotes from, the bench statement.) Had he done so, he would discover (slip op. at 19-21) that Scalia is responding to the government’s argument that the Obama administration’s enforcement priorities ought to be given weight in the preemption analysis.

Further, far from “questioning President Obama’s decision,” Scalia is expressly agnostic on it, as language that Dionne quotes but doesn’t grasp (“The president has said that the new program is ‘the right thing to do’…. Perhaps it is, though Arizona may not think so”) shows. Scalia’s point (which, again, Dionne quotes but doesn’t grasp) is that what matters is whether Arizona’s law conflicts with federal immigration law, not whether it conflicts with the Obama administration’s enforcement priorities. There may well be reasonable grounds for contesting this legal proposition, but Dionne’s contention that Scalia was being “blatantly political” in making it is woefully ill-informed.

Dionne’s second piece of evidence—Scalia’s 2004 decision not to recuse himself from a case involving Vice President Cheney—is equally flimsy. Dionne obscures the actual basis that Scalia set forth in his 21-page memo—that friendship “has tradition­ally not been a ground for recusal where official action is at issue, no matter how important the official action was to the ambitions or the reputation of the Government officer.” Nor is Dionne apparently aware that various folks with unimpeachable liberal credentials, like law professor Michael Dorf, have found Scalia’s reasoning (in Dorf’s phrase) “both simple and persuasive.”

Again, there may well be room for reasonable disagreement (not that Dionne offers anything resembling an argument), but how could any sane person possibly see in Scalia’s non-recusal any support for calling for his resignation?

Dionne’s third and final offering is a speech that Scalia gave in Switzerland in March 2006, “a few weeks before the court was to hear a case [Hamdan v. Rumsfeld]involving the rights of Guantanamo detainees.” In that speech, Scalia stated that he was “astounded at the world reaction to Guantanamo” and reiterated traditional principles governing enemy combatants, but he didn’t comment specifically on the Hamdan case.

If Dionne’s objection is that Scalia expressed his views on the general matter of Guantanamo detainees at the same that Hamdan was pending before the Court, it would be highly relevant to point out—but Dionne doesn’t—that Scalia had already set forth, in his 2004 dissent in Rasul v. Bush, his legal judgment that non-citizen enemy combatants captured on the battlefield and detained at Guantanamo have no right to seek redress in federal court. It is widely accepted that a justice has broad freedom to reiterate publicly what he has already written in his opinions.

In sum, Dionne’s anti-Scalia rant rests on nothing.


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