The passing of Justice Antonin Scalia is a dark day for American jurisprudence. But although immigration patriots had reason to view him with hope, the immediate negative consequences can probably be contained—unless the GOP Senate caves and accepts Obama’s nominee.
In Eichmann in Jerusalem, Hannah Arendt commented on how boring Eichmann’s last words were: “In the face of death, he had found the cliché used in funeral oratory.” She famously concluded that this was the culmination of "the lesson of the fearsome, word-and-thought-defying banality of evil."
The American legal system similarly manages to inflict great damage through mind-numbingly boring means. What should be simple issues—whether Arizona has the right to detain criminal illegal aliens; whether President Obama can simply ignore all immigration laws—become hopelessly complicated hundred-plus-page decisions on complex doctrines about statutory preemption and the Administrative Procedure Act. The more incomprehensible these opinions are to the average American, the easier it is to pretend that the decisions are the product of intelligent judges interpreting complex laws rather than what they often are: judicial tyranny.
Justice Scalia did enormous service to this country by cutting what he called “argle-bargle” out of these opinions to get to the core issues. Case in point: when the Court gutted parts of Arizona’s SB 1070, even legal experts initially had difficulty deciphering the majority’s opinion. In contrast, Scalia’s dissent made the stakes clear:
The United States is an indivisible “Union of sovereign States.” Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result.
Scalia further refused to separate the legal technicalities from the realities of the immigrant invasion:
Arizona bears many of the consequences of unlawful immigration...Unauthorized aliens who remain in the State comprise, by one estimate, almost six percent of the population.... And in the State’s most populous county, these aliens are reported to be responsible for a disproportionate share of serious crime. Statistics alone do not capture the full extent of Arizona’s concerns. Accounts in the record [PDF] suggest there is an “epidemic of crime, safety risks, serious property damage, and environmental problems” associated with the influx of illegal migration across private land near the Mexican border.
As his job required, Scalia still addressed the intricacies of federal preemption, complex regulatory schemes, and equal protection. However—and unlike even the other dissenting Justices, Alito and Thomas—he clarified the issues and their implication for the future of the U.S. system of government. He concluded:
The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.
Hamdi was an Anchor Baby who was born in Louisiana when his parents were on temporary visas and left the country as an infant, never to return. He fought with the Taliban and was detained by US forces at Guantanamo, at which point he claimed US Citizenship. The case involved whether US Citizens could be deemed enemy combatants and what rights they were owed.
The Bush administration, needless to say, did not attempt to challenge whether Hamdi was a U.S. Citizen to begin with, so the Court did not have the opportunity to address Birthright Citizenship. However, Scalia’s dissenting opinion (which liberal Justice John Paul Stevens joined) called Hamdi a “presumed U.S. Citizen.” By adding “presumed,” he signaled that he was open to reviewing Birthright Citizenship and gave moral support to future legal challenges against the disastrous and unconstitutional policy.
I could go on and on about Scalia’s great legacy. But I want to now focus on the immediate implications of his death.
The good news: assuming the Republican-controlled Senate has the backbone to hold off confirming any Obama appointee for the remainder of the year, Scalia’s passing will not affect the two most important cases for VDARE readers: U.S. V. Texas (whether the Court upholds the 5th Circuit’s injunction against Obama’s executive Amnesty) and Fisher v. Texas (on the constitutionality of Texas’s Affirmative Action policies).
The 5th Circuit ruled against the Obama administration in U.S. vs. Texas, so if there is a 4-4 tie, its ruling stands. Ties do not create any national precedent, but the lower court’s ruling blocks the Amnesty nationwide.
In Fisher v. Texas, Elena Kagan has already agreed to recuse herself because, while serving as Obama’s Solicitor General, she had involved herself in the litigation. Thus the Court could strike down Affirmative Action in a 4-3 vote.
Of course, this does not mean that these cases will necessarily cone out that way. Roberts and Kennedy could vote with the liberals (though I’m not too worried about Roberts in Fisher.) However, if they switched votes, we would still have lost if Scalia were alive. (In Fisher, the Fifth Circuit ruled in favor of Affirmative Action, so if Scalia were alive and Kennedy voted with the liberals, the court would be deadlocked 4-4. However, unlike U.S. v. Texas, the lower court ruled in favor of Affirmative Action, so a tie would maintain it.)
Of course, despite Senate Majority Leader Mitch McConnell’s promise not to confirm any Obama nominee, he may very well fold (again). Many liberals are claiming that, for its own good, the GOP should confirm a moderate Obama appointee, because if they lose the election, “they'll almost certainly end up being forced to confirm a more liberal justice nominated by President Sanders or President Clinton”. [Obama Should Let the Senate Advise Him on a Replacement for Scalia, by Kevin Drum, Mother Jones, February 14, 2016]
The more moderate Democratic appointee who might result from this GOP capitulation, such as Sri Srinivasan (whose “conservatism” is actually limited to representing Enron’s Jeff Skilling), might indeed be slightly less hostile to corporate America. But I have no doubt that he would side with Sonia Sotomayor on any hot button issues involving Affirmative Action and immigration. In contrast, we don’t know how GOP-appointed Justices Roberts and Kennedy will rule.
In 2012, Scalia said: “I would not like to be replaced by someone who immediately sets about undoing everything that I’ve tried to do.” [Justice Antonin Scalia and the ‘Dead’ Constitution, by Bruce Allen Murphy, NY Times, February 14, 2016]
The best way to honor Scalia’s legacy: block Obama’s attempt to replace him with another Sotomayor and elect a patriot President to appoint his successor.
John Reid [email him] is an American citizen and a recent law school graduate.