It’s Time to Impeach Justice Scalia

Antonin Scalia in 2010. Credit: Wikipedia

In April 1970, Gerald Ford, minority leader of the House of Representatives and future Vice President, then President, of the United States, demanded the impeachment of Supreme Court Justice William O. Douglas. Ford told the House, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body [Senate] considers to be sufficiently serious to require removal of the accused from office.” Ford justified his demand for Douglas’s removal by stating “I think it is fair to come to one conclusion, however, from our history of impeachments: a higher standard is expected of federal judges than of any other ‘civil officers’ of the United States."

Based on his unprincipled dissent when a divided the Supreme Court overturned key aspects of the 2010 Arizona anti-immigrant law and the political attack he launched from the bench on the immigration policies of the Obama administration, it is time to seriously consider removing Associate Justice Antonin Scalia from the Supreme Court for unprofessional and erratic behavior.

Scalia has long insisted that his judicial opinions are based on a philosophy he describes as “textualism,” or respect for the words that actually appear in the text of the Constitution rather than basing court decisions either on an effort by judges to understand what the authors intended at the time or on the significance of their ideas when applied in the modern era. However, in a number of his opinions, he has defied his own standard.

Scalia has written:

I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.  I'm not very good at determining what the aspirations of the American people are ... If you want somebody who's in touch with what are the evolving standards of decency that reflect a maturing society, ask the congress.

One problem is that the text of the Constitution is often unclear or avoids issues altogether and in these cases Scalia invents his own meaning. In the Arizona anti-immigration case, Scalia decided that the state of Arizona is a sovereign entity with its own what are essentially national powers and the United States is a union of sovereign states.

According to Scalia:

Federal power over immigration comes from the same source as state power over immigration: it is an inherent attribute -- perhaps the fundamental attribute -- of sovereignty. The States, of course, are sovereign, the United States being a Union of sovereign States. To be sovereign is necessarily to possess the power to exclude unwanted persons and things from the territory. That is why the Constitution’s prohibition of a State’s imposing duties on imports made an exception for “what may be absolutely necessary for executing it’s inspection Laws.” Thus, this Court’s cases have held that the States retain an inherent power to exclude. That power can be limited only by the Constitution or by laws enacted pursuant to the Constitution. The Constitution, as we have seen, does not limit the States’ power over immigration but to the contrary vindicates it. So the question in this case is whether the laws of the United States forbid what Arizona has done.

“The States,” Scalia asserts, “of course, are sovereign, the United States being a Union of sovereign States.” I did a quick word search of the text of the United States Constitution looking for the word sovereignty to see how sovereignty was assigned. The word sovereignty never appears in the Constitution. The word state does appear over two dozen times, but nowhere does it say the states have the same powers or authority as independent nations. The Constitution does say “The Congress shall have Power ... to establish an uniform Rule of Naturalization” and to “suppress Insurrections and repel Invasions” and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

The Declaration of Independence does say in the concluding passage that these “United Colonies are, and of Right ought to be Free and Independent States ... and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.” However, the Declaration of Independence is a statement of principle that does not establish the laws of the United States and even as a statement of principal it is superseded by the Constitution.

Curiously, in a letter signed by George Washington to the Congress of the Articles of Confederation presenting the new Constitution, state sovereignty is discussed. According to the letter:

It is obviously impracticable in the Federal Government of these States to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained.  It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be preserved; and, on the present occasion, this difficulty was increased by a difference among the several States as to their situation, extent, habits, and particular interests. In all our deliberations on this subject, we kept steadily in our view that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety -- perhaps our national existence.

Since this letter is not actually included as part of the Constitution, it does not count as law, but it does make clear that the “original intent” of the founders assembled at the Constitutional Convention in Philadelphia during the summer of 1787 was based on the belief that the “greatest interest of every true American” was the “consolidation of our Union” and that this meant state’s surrendered “independent sovereignty” to “provide for the interest and safety of all.”

The Constitution never says that the power to regulate immigration is reserved to the individual states. The founders could not have been considering Arizona in any case, which at the time the Constitution was written was a territory of Spain.

In reference to the slave trade, the Constitution does say “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight.” But after 1808, Congressional authority superseded state authority. States were also forbidden to “enter into any Treaty, Alliance, or Confederation” with other countries, a prohibition that prevented them from negotiating immigration policies with other countries.

In addition, the Constitution does say, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Instead of the Constitution, Scalia bases his arguments on two earlier Supreme Court decisions. In a 1938 water dispute case in the west, Hinderlider v. La Plata Co., the Supreme Court ruled:

If Congress consented, then the states were in this respect restored to their original inherent sovereignty, such consent being the sole limitation imposed by the Constitution, when given, left the states as they were before, as held by this Court in Poole v. Fleeger ...

Scalia claims “the laws of the United States” did not “forbid what Arizona has done.” But he seems to miss the point that in this decision on boundaries and water rights, states only assumed sovereignty “if Congress consented,” which it did not in the Arizona anti-immigration case.

Poole v. Fleeger from 1837 is an even stranger precedent to cite because it preceded the start of the Civil War by twenty-four years, a war that supposedly resolved that it is the national government formed by “we the people” which is sovereign. In this pre-Civil War case, the Supreme Court ruled that states could establish their boundaries because “It cannot be doubted that it is a part of the general right of sovereignty belonging to independent nations to establish and fix the disputed boundaries between their respective territories, and the boundaries so established and fixed by compact between nations become conclusive upon all the subjects and citizens thereof, and bind their rights and are to be treated, to all intents and purposes as the true and real boundaries. This is a doctrine universally recognized in the law and practice of nations.” However, the Court failed to demonstrate where in the Constitution states were recognized as independent nations.

In fact, as early as the 1793 Chisholm v. Georgia case, the Supreme Court had established that Article 3, Section 2, of the Constitution abrogated the States’ sovereign immunity and granted federal courts the affirmative power to hear disputes between private citizens and States.

But even worse than Scalia’s misreading of the Constitution, which I suppose can be attributed to legitimate disagreement, is his politicization of the Supreme Court.

In his Arizona anti-immigration dissent, Scalia attacked the recent decision by the Obama administration not to prosecute and deport young people who were brought to this country without documentation by their parents.

Scalia wrote:

So the issue is a stark one: Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws? A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Imagine a provision—perhaps inserted right after Art.I,§8,ci.4, the Naturalization Clause— which included among the enumerated powers of Congress “To establish Limitations upon Immigration that will be exclusive and that will been forced only to the extent the President deems appropriate." The delegates to the Grand Convention would have rushed to the exits from Independence Hall.

Other than the fact that Scalia has always insisted we do not know what the “delegates to the Grand Convention” would have done, he also violates judicial impartiality on an issue that may eventually end up in the courts.

And of course, this is not the first time Scalia has entered the political area. In fact, it is a repeating pattern of misbehavior.

Since being appointed to the Supreme Court Scalia has defended torture in a BBC interview; accepted G.O.P. Rep. Michele Bachmann’s invitation to address the Tea Party Caucus; told an audience in Switzerland that the Constitution doesn't protect foreigners who are held in Guantanamo; and argued that the Fourteenth Amendment does not protect women against sex discrimination.

While Scalia prides himself on being a “strict constructionist” and a supporter of judicial restraint, this is not reflected in his voting behavior on the Court. Two-thirds of the time Scalia has supported decisions declaring state and local legislation unconstitutional. Three-fourths of the time he has voted in favor of decisions declaring federal legislation unconstitutional. In overturning legal precedents, Scalia ranks ninth among the thirty-two justices who have served since 1946.

Scalia voted in the minority in an effort to overturn the federal Affordable Care Act and in his dissenting opinion seems to call for a return to eighteenth-century government and way of life. He criticized not only the health insurance mandates but also the Department of Education, the Department of Health and Human Services, and the Department of Housing and Urban Development as excessive overreaches of federal authority. Scalia based his textualist opinion on a close reading, not of the Constitution or of legal precedents, but on definitions of “regulate” from antiquated dictionaries: Noah Webster’s from 1828, Samuel Johnson’s from 1785, one by Ash (1775), and one by Dyche and Pardon (1777). Of course these dictionaries have no legal weight and there is no evidence the authors of the Constitution were familiar with these dictionaries or agreed with the definitions, but that does not seem to have bothered the textualist champion.

Although the word “corporation” does not appear in the Constitution of the United States (or in Samuel Johnson’s 1785 edition of his dictionary), Scalia joined a narrow majority in striking down limits on corporate spending in federal elections. He insisted that somehow these limitations violated the First Amendment right of corporations as non-humans to freedom of speech.

Perhaps the greatest example of Scalia’s ideological activism on the Court and his basic inconsistency was his decision in Bush v. Gore (2000) when the Court’s conservative majority stopped a vote recount in Florida in the name of equal protection of the law!

We can no longer afford to tolerate Scalia as a conservative curmudgeon; he is a right-wing ideologue who is in a position to threaten constitutional government in the United States. He is a smart man, but smarts without a respect for law are dangerous, especially on the United States Supreme Court. Of course, Antonin Scalia could decide to spare the nation the spectacle of an impeachment and trial. After reading this indictment, he could just resign.