During a little-noticed oral argument over Indian lands in April, Justice Antonin Scalia did what he often does with lawyers whose positions he supports: He threw the advocate a lifeline.
Scalia stated his helpful view and told the lawyer, novice U.S. Supreme Court advocate Matthew Nelson, “You don’t disagree with that, do you?” Nelson, a partner at Warner Norcross & Judd in Grand Rapids, Mich., dutifully replied, “We don’t disagree.”
Scalia’s quick retort: “You’re supposed to say ‘Yes, sir, good.’ ”
It was a line meant to be humorous, no doubt, and it earned Scalia laughter from the audience — the kind of response that routinely puts him at the top of the list of funniest justices. But to some in the Court chamber, it came across as unusually flip.
Advocates and commentators usually shrug off Scalia’s sometimes barbed comments from the bench, as well as his stinging dissents, in the same way that retired Justice Sandra Day O’Connor did when she would say, “That’s just Nino.”
During this term, partly because of the politically fraught cases the justices faced, Scalia’s behavior has come in for less forgiving scrutiny. His dissent on June 25 in Arizona v. U.S. has brought a wave of sharp public criticism.
In the dissent, Scalia criticized President Obama’s new policy of lax immigration enforcement against the children of illegal aliens — a policy not at issue in the case. “To say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind,” Scalia said. No other justice joined him in the opinion, which he ended with the words “I dissent,” omitting the customary adjective “respectfully.”
Liberal pundit E.J. Dionne called for Scalia to resign in a Washington Post column that went online on June 27. “He’s turned ‘judicial restraint’ into an oxymoronic phrase,” Dionne wrote. Nan Aron, president of the liberal Alliance for Justice, said in a Huffington Post column that Scalia this term has spouted “recitations of Rovian talking points that more properly belong on Fox & Friends than in the Supreme Court of the United States.”
Even Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit, usually simpatico with Scalia’s views, seemed unnerved by his outspokenness. “It wouldn’t surprise me if Justice Scalia’s opinion were quoted in campaign ads,” Posner wrote in Slate on June 27.
Scalia’s in-your-face tone in the Arizona dissent has been mirrored at oral argument, prompting several veteran high court advocates to criticize his demeanor this term — though none would speak on the record, for fear of incurring his wrath.
Much of that criticism was triggered by Scalia’s pointed comments during the six hours-plus of oral argument in the health care cases in late March. His comments about the government forcing individuals to buy broccoli and his reference to the “Cornhusker kickback” that preceded passage of the law have been criticized as unusually political.
And then there was his odd reference, during the debate over the expansion of Medicaid, to an old Jack Benny joke. Even after it fell flat, Scalia persisted until he finally gave up and Chief Justice John Roberts Jr. cut off the discussion with a school-marmish, “That’s enough frivolity for a while.”
A recently published detailed study of the oral arguments in the health care cases found that Scalia spoke more often than any other justice — 88 times — and directed 87 percent of his “challenging” questions toward the lawyers defending the health care law. (Justice Samuel Alito Jr.’s percentage was higher, at 95 percent.)
“We find it ironic that Justice Scalia’s biased questioning dominates oral arguments, but yet he is one of the strongest proponents of textual objectivism,” wrote authors Ryan Malphurs and L. Hailey Drescher. “Apparently his objectivism may not apply to oral arguments.”
Since he joined the Court in 1986, Scalia has relished his role as the “happy warrior” of the conservative wing, enjoying combat as much as victory. His energetic approach to arguments has transformed a once-quiet bench into a free-for-all in which justices interrupt advocates and each other without apology.
For her 2009 biography of Scalia entitled American Original, author Joan Biskupic asked him about his high-octane questioning. He said, “Why does the argument have to be dull, for God’s sake?” From that answer, Biskupic observed that “he often could not hear himself as others heard him.” Or, she suggested, “he simply does not care.”
As the 76-year-old justice ages, that latter explanation may be gaining more traction. Aware that he won’t be chief justice and won’t be viewed by history as a coalition-builder, Scalia may be content to toss firecrackers and watch the sparks fly, hoping that his dissents will someday prompt the Court to change course.
“He’s just letting it hang out,” said Lawrence Wrightsman, a University of Kansas psychologist who wrote The Psychology of the Supreme Court in 2006. “Everything is so adversarial now, and he is letting the belligerent aspect of his nature come out.”
Others see no significant change in Scalia’s demeanor. “He’s always been a tough questioner and a forceful opinion writer,” said Kevin Walsh, a University of Richmond School of Law professor and 2003-04 law clerk to Scalia. “The diet of cases this term just presented a lot more opportunities to clash.”
Conservative commentator Edward Whelan, president of the Ethics and Public Policy Center, said Scalia was “making a legal argument” in his Arizona dissent, responding to the Obama administration’s assertion that its immigration policy — even a policy of nonenforcement — should trump Arizona’s law.
As for Scalia’s temperament, Whelan, who clerked for Scalia in 1985-86, said, “He has a classic Latin temper. He can get very upset and then blow past it and be exuberant.”
Tony Mauro can be contacted at firstname.lastname@example.org.