Posner Hammers Scalia for Immigration Dissent

Judge Richard Posner, the legendary judge on the 7th Circuit Court of Appeals, writes a letter to Slate magazine hammering Justice Scalia for his dissent in the Arizona immigration law ruling, where he ranted about Obama allegedly failing to enforce our immigration laws.

He is very concerned with the fact that the Obama administration recently announced a program suspending deportation efforts directed at more than1 million illegal immigrants under the age of 30. He quotes President Obama as having said that the program was “the right thing to do.” Justice Scalia says that it “boggles the mind” to think that Arizona could be contradicting federal law by enforcing applications of federal immigration law “that the President declines to enforce.” He says that the federal government “does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude.” The federal government is “refus[ing] to enforce the Nation’s immigration laws.”

These are fighting words. The nation is in the midst of a hard-fought presidential election campaign; the outcome is in doubt. Illegal immigration is a campaign issue. It wouldn’t surprise me if Justice Scalia’s opinion were quoted in campaign ads. The program that appalls Justice Scalia was announced almost two months after the oral argument in the Arizona case. It seems rather a belated development to figure in an opinion in the case…

In his peroration, Justice Scalia says that “Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrant who invade their property, strain their social services, and even place their lives in jeopardy.” Arizona bears the brunt? Arizona is only one of the states that border Mexico, and if it succeeds in excluding illegal immigrants, these other states will bear the brunt, so it is unclear what the net gain to society would have been from Arizona’s efforts, now partially invalidated by the Supreme Court. But the suggestion that illegal immigrants in Arizona are invading Americans’ property, straining their social services, and even placing their lives in jeopardy is sufficiently inflammatory to call for a citation to some reputable source of such hyperbole. Justice Scalia cites nothing to support it.

As of last year there were estimated to be 360,000 illegal immigrants in Arizona, which is less than 6 percent of the Arizona population—below the estimated average illegal immigrant population of the United States. (So much for Arizona’s bearing the brunt of illegal immigration.) Maybe Arizona’s illegal immigrants are more violent, less respectful of property, worse spongers off social services, and otherwise more obnoxious than the illegal immigrants in other states, but one would like to see some evidence of that.

Indeed.

24 comments on this post.
  1. baal:

    I’m exceedingly happy (happy isn’t the right word) that there is a backlash to Scalia’s over-the-top rant-in-dissent in the US vs Arizona 2012 case. It allows me to hope that there is a limit to right wing lunacy that honest conservatives will support. Judge Posner is no light weight nor lefty (legendary is aptly used to describe him). For him to have come out against Scalia’s rant is a huge deal.

  2. Raging Bee:

    I’ll say one thing in Scalia’s favor: you can’t argue with his legal reasoning…because there isn’t any. It’s nothing but hysteria and possibly flat-out racism: “How can you talk about the law and the Constitution when dark-skinned heathen savages are invading our property and poisoning our precious bodily fluids??!!!”

    This wannabee-thug is no better than Joe Arpaio. (Did he say anything about Obama’s birth certificate?)

  3. troll:

    How often is it that a (relatively) lower court judge openly and publicly criticizes a sitting Supreme Court justice? (This isn’t rhetorical; I genuinely have no idea whether or not this is a thing.)

  4. d cwilson:

    Just out of curiosity, did Scalia ever issue a complete non-sequitor attack on Bush when he issued an executive order suspending the deportation of illegal immigrants from China?

  5. Ed Brayton:

    troll-

    I follow the judiciary pretty closely and I can’t ever remember it happening before. I’ve certainly seen them write law review articles criticizing rulings from the high court, or delivering speeches talking about how they think the court should have ruled in a case, but I’ve never seen one write an open letter with this kind of criticism in it.

  6. Kaoru Negisa:

    Evidence? From Scalia?

    When snakes talk!

  7. thebiggs:


    Posner isn’t a “relatively lowly” court judge. He is a former chief judge of the 7th circuit court of appeals, and also happens to be the most cited legal scholar alive. Within legal circles, and not counting the justices sitting on the Supreme Court, he is the most influential sitting judge living, with the possible exception of Judge Calabresi. Along with some of his colleagues at the University of Chicago Law School, he pretty much invented the field of law and economics. Its not surprising though that non-legal types have not heard of him, though. He doesn’t write often on non-legal or generalist topics, so unlike other well-known modern legal scholars like Dworkin, he doesn’t get very much play outside of the legal community.

    I am absolutely not surprised by Posner coming out in this way on this topic, but I don’t think this article gives a good impression of his full opinion of the court. He comes off as thinking that the court is inherently biased, but what I think he really means to convey is that he is angry with Scalia for creating the APPEARANCE of bias. In my third year of law school at the University of Chicago, I took a course on judicial behavior co-taught by Judge Posner, Judge Easterbrook, and two other professors. It was their intent to offer a positivist account of law, one based on objectively observable facts about how justices act. One of the most important lessons of that course, which they reiterated repeatedly, was that anyone who thought that the court was deciding on politics alone was almost always going to fail to find a significant result when they went looking for that bias using objective criteria. The justices are unanimous in 43% of all cases, and given that they control what cases they review and are believed to take only “hard” cases, that result simply can’t be consistent with a court that is motivated primarily by party politics.

    What Posner seems to really be worried about is that the appearance of impropriety will lead to erosion of respect for the courts and the rule of law. I doubt he objects too much to the outcome reached by Scalia, just that he got there in an openly partisan way.

  8. thebiggs:

    Wow, that was not supposed to all be in blockquote. I’m really sorry for the poor formatting there.

  9. Ed Brayton:

    yeah, thebiggs is correct. Posner is a legal giant, which is what makes this a really interesting development.

  10. D. C. Sessions:

    It’s even more interesting (and timely) in light of the revelations coming from the “little people” close to the USSC on the schism between the “Scalia wing” and Chief Justice Roberts. Apparently the right wing was practically giddy at their chance to stick it to the Democrats, and went so overboard that Roberts couldn’t go along with the flagrantly partisan tack being taken.

    Which led to some extremely loud arguments, and ultimately to a dissent which was worded to make about as open a “fuck you, John” statement as we’re likely to see from four Justices.

    Not exactly an effective way to bolster the Court’s image, that.

  11. Kaoru Negisa:

    …Roberts couldn’t go along with the flagrantly partisan tack being taken.

    I think it’s important to discuss the “why” here. Scalia and Thomas have never had a problem with hyper-partisanship, and Roberts really hasn’t shown a whole lot of scruples on this point in the past. I sincerely think he’s concerned about his legacy and the perception of the legitimacy of the court, a concern that many of his colleague simply don’t share in the same way that Republicans don’t care about protests or poll numbers most of the time. I think Roberts saw this as basically breaking the perception that the SCOTUS was in any way a neutral body and flipped to preserve whatever is left of that perception.

    …ultimately to a dissent which was worded to make about as open a “fuck you, John” statement as we’re likely to see from four Justices.

    The most egregious example is probably that the dissert refers to Justice Ginsberg’s “dissent,” as if it were the majority opinion and Ginsberg was writing the dissent for the liberals. They could have done a “Find and Replace” in Word, but they left it in there to fuel partisan fires.

  12. shockna:

    Interesting that he says that Arizona “bears the brunt” of social problems relating to illegal immigration.

    Down here in liberal Tucson, less than sixty miles from the border, I don’t feel under siege, nor is my property being invaded, and nobody’s life is in jeopardy for illegal immigration.

    We do, however, have a severe strain on social services. But that’s more because the hyper conservative legislature in xenophobic Phoenix is trying to destroy it, than due to any overbearing amount of illegal immigration.

    [rant]
    An anecdote about the constriction of social services:

    A very good friend of mine is on food stamps because she and her boyfriend couldn’t afford food and rent on minimum wage ($7.65/hr) jobs. She got a raise of about $.05, and when her eligibility for food stamps was recalculated, the change in income dropped her monthly check (It’s on a card; not sure what to call it) from ~$115, down to $15. Apparently according to the Arizona legislature, making an additional $104 a year (Before taxes) is worth losing close to 90% of your monthly food budget.
    [/rant]

  13. Modusoperandi:

    Richard Posner must be one of them liberalactivistjudges, making everything political!

  14. Dr X:

    @DC Sessions:

    It’s even more interesting (and timely) in light of the revelations coming from the “little people” close to the USSC on the schism between the “Scalia wing” and Chief Justice Roberts. Apparently the right wing was practically giddy at their chance to stick it to the Democrats, and went so overboard that Roberts couldn’t go along with the flagrantly partisan tack being taken.

    Does this mean no more sleepovers at Clarence’s house?

  15. gesres:

    Seems to me that the Federal government’s failure to enforce immigration law is itself an immigration policy that the states have no right to overrule.

  16. davefrancis:

    With key questions answered by the Supreme Court over illegal immigration, our nation must now analyze the growing problem presented to us nationwide. We now have a fair indicator of what each sovereign State has the ability to do, regarding its own sovereignty provisions? Does the Supreme Court’s ruling reject the main aspect of Arizona’s S.D.1070? NO! It has given Arizona a right to control its borders. The courageousness of Arizona that daring to go against the Marxist, Socialist agenda in Obama’s administration, has been seen by most as ruthless grab on power. Attorney General, Eric Holder forever branded by the ‘Fast and Furious’ gun walking outrage and the senseless murder of U.S border agent Brian Terry will ever be on his conscious; if he has a conscious? This man, thirsting for absolute power decided to teach the Grand Canyon State a lesson and in turn, has turned the majority of law abiding Americans against the Obama administration for his actions.

    Arizona can now adopt its original statute; ‘ATTRITION THROUGH ENFORCEMENT’. So rather than take their chances in Arizona, I foresee hundreds of thousands of illegal aliens families fleeing, thereby adding financial torture to the nearest Liberal orientated states like California and Nevada. ILLEGAL ALIENS MUST BE SAYING TO THEMSELVES, “WHY BOTHER WITH A STATE, WHERE YOU COULD BE PULLED OVER FOR A TRAFFIC VIOLATION, WHEN YOU COULD EMPTY CALIFORNIA’S HAMPER OF FREE GOODIES? Hey! California gives free handouts of taxpayer’s cash, so why stay in that border state? Currently California is suffering from a $16 billion dollar deadfall deficit, because of a Liberal Mayor and lobotomized governor. They have been brought upon themselves, by a radical group of politicians who have more loyalty to countries south of the border, than an alliance to the U.S. Constitution. They have allowed the giving of huge amounts of taxpayers’ money to illegal nationals; even as far provide drivers licenses. Soon California and other members of our 50 state unions, will be crying foul? Those states will be monetary hurting even more as the evacuation begins from locations that espouse Arizona’s law. States as Alabama, Georgia, South Carolina, Utah that are already financially hurting from the influx of impoverished people, will adapt their statutes so as not to conflict with federal law.

    MY QUESTION IS, WILL ALL THESE CRIMINAL INVADERS GO? WHETHER IT’S MINNESOTA, FLORIDA, TEXAS OR WHICH OF THE 50 STATES WILL BE SUDDENLY OVERWHELMED FROM STATES WITH TOUGH ENFORCEMENT?

    THE TEA PARTY WILL NOT COMPROMISE ON ILLEGAL IMMIGRATION. THEY BROKE THE LAW, SO THEY WILL BE DEPORTED.
    To really make life hash for illegal alien criminals, our spineless Republicans should assume these two bills without fail. Rep. Lamar Smiths bill ‘The Legal Workforce Act’ (H.R. 2885) better known by Americans as E-Verify. Judging by its success as currently a volunteer law, it has become a remarkable electronic program, which detects unauthorized non citizens hired, but then flagged and can only be resolved by stepping into Social Security offices. No illegal alien would dream of doing that, even if they are in possession of procured ID documents? Of course a mainstream Liberal press has carefully tried to demonize the E-Verify business checking Database?

    Second in line, but just as paramount in important is the BIRTHRIGHT CITIZENSHIP (H.R.140) amendment law. This disqualifies illegal alien mothers able to gain immediate acceptance of their unborn baby smuggled through ports of entry, either across the ocean or through our limited border fence defenses. Foothold children are costing $100 billions of dollars in welfare, cash payments, education and health care treatment. Only the obstacle of pro-illegal alien forces in the Democrat and Republican Party and stopping these bills from becoming the law of the land.

    What is that old adage, about ‘Those who cannot remember the past are condemned to repeat it’? Something like that?

    Therefore we must remove as many incumbents and any politician and retain the services of true TEA PARTY members. Otherwise whether Obama wins, we will just have a second term president ready ‘to Tax and Spend America into the toilet But then we have Mitt Romney and his crew of wealthy politicians, who could cause just as much trouble. The TEA PARTY is now part of the American ideology? Unlike Obama it believes in free will and an individual’s right to choose his own path. The TEA PARTY believes in a government to deal with the basic essentials of defense and so forth, but not getting involved in health care think most American have credence in this issue, as since when does any country other than the United States allow illegal aliens to come here, without true retribution-such as exacting it as a Felony. Wouldn’t you come here if the all you were going to be prosecuted for is a simple civil infraction? . In a new Rasmussen Reports national telephone survey finds that 58% of likely U.S. voters think the policies and practices of the federal government encourage illegal immigration for decades. What we need is a voter revolution against both political parties, because whoever gets in November will repeat the same laws as we have always had. Of course the Left now is crowing about ‘Voter Suppression’ that is far from the truth.

    All Americans want is a fair and Equitable election, because currently not? Non-citizens are voting and certain Democrats are allowing this to happen. Remember that large numbers of these people, who will vote for Obama, are those who are playing the welfare system, who want ‘Something for nothing’. I have a family to support, and I don’t want to support the poverty from banana Republics. We have our own disabled, veterans without homes and others; so why are we forced by federal mandate that our money should go to foreign nationals.

    JOIN YOUR LOCAL TEA PARTY and put an end to illegal immigration. Put an end to President Obama’s socialistic philosophy and that does not exclude Mitt Romney’s idea of a government. There are thousands of TEA PARTY chapters around the country involved with a new agenda for America. The TEA PARTY statement is securely seal the border; halt the ‘FOOTHOLD’ baby racket, sanctuary cities, dream acts and then talk about building a secure minded fair immigration system, not importing more poverty and foreigners that have to be supported with taxpayer money?

    This is the time when every American who believes in the ‘Rule of Law’ and steps forward to let their Senator or Congress person knows how you will vote. Tell the politician’s aide and that you want them to pass E-Verify and the Birthright Citizenship bills. Citizen voters should phone Congress at the central Switchboard at 202-224-3121. Insist YOUR CONGRESSMAN/WOMAN TO fulfill their obligation to the oath of office and stop pandering to the businesses that use cheap labor, or the Democrats who are overlooking illegal aliens who are voting. You have the empowerment of your VOTE to demand they sponsor these to policies or we are doomed to a future, without any restrictions to our out-of-control U.S. deficit.

  17. Modusoperandi:

    Yeah! I’m with dave “copy ‘n’ paste” francis! Up with [a certain kind of] people!

  18. Dr X:

    davefrancis is brain dead.

  19. shockna:

    “The courageousness of Arizona that daring to go against the Marxist, Socialist agenda in Obama’s administration”

    Uh huh. Sure. The center-right (Arguably outright conservative) President Obama has a secret “Marxist, socialist agenda”. You obviously don’t know what that first word even means, and socialism isn’t a bad thing.

    “ILLEGAL ALIENS MUST BE SAYING TO THEMSELVES, “WHY BOTHER WITH A STATE, WHERE YOU COULD BE PULLED OVER FOR A TRAFFIC VIOLATION, WHEN YOU COULD EMPTY CALIFORNIA’S HAMPER OF FREE GOODIES?”

    I’d love to see you even try to do the kind of work illegal immigrants tend to get. They aren’t bloodsucking parasites, you know; they’re humans.

    Also:

    “They have allowed the giving of huge amounts of taxpayers’ money to illegal nationals; even as far provide drivers licenses.”

    “Foothold children are costing $100 billions of dollars in welfare, cash payments, education and health care treatment. ”

    “Non-citizens are voting and certain Democrats are allowing this to happen.”

    “the Democrats who are overlooking illegal aliens who are voting.”

    Do you have proof for any of the preceding claims?

  20. Kaoru Negisa:

    Of course he doesn’t. On Planet Wingnuttia, as Ed continually reminds us, the ability to say something with authority is reason enough for it to be believed. Also random capitalizations and awkward rhetorical questions. Those really add credence to an argument.

  21. Kaoru Negisa:

    THE TEA PARTY WILL NOT COMPROMISE ON ILLEGAL IMMIGRATION.

    Well, they don’t compromise on anything else, so why would this be different? It must be so very hard to have to fight dozens of impending threats to freedom every day. How incredibly sad it must be to always be looking for the next way the government is trying to take your freedom away. I’d find that exhausting.

    I mean, the Senate just passed the flood insurance bill without Rand Paul’s Personhood amendment, so clearly that must mean they’re attempting to redistribute wealth to flooded regions of the country while simultaneously turning them into de facto prison camp for job creators who are uncertain about investing. I think that has enough buzz words to be a Tea Party meme.

    Go, my conspiracy theory! Go forth and wreak havoc!

  22. Paul W., OM:

    davefrancis’s overlong comment is spam he’s repeatedly posted elsewhere, e.g. at cbsnews and at democratherald.

    I suggest we ignore it. (And that Ed delete it.)

    We don’t want to encourage that sort of thing.

  23. Reginald Selkirk:

    The most egregious example is probably that the dissert refers to Justice Ginsberg’s “dissent,” as if it were the majority opinion and Ginsberg was writing the dissent for the liberals. They could have done a “Find and Replace” in Word, but they left it in there to fuel partisan fires.

    This might be an appropriate occasion to invoke Hanlon’s razor.

  24. Kaoru Negisa:

    This might be an appropriate occasion to invoke Hanlon’s razor.

    I suppose it is possible that they simply forgot that they were once the majority opinion and needed to alter the words on the most contentious case they’ve heard since Bush v Gore, but I find it highly unlikely. The Justices we’re discussing are generally known for their maliciousness, as well as their intellect. In the culture of the SCOTUS, where it’s considered the height of foul play to discuss the inside baseball workings of the Court to outsiders, this is one of the only ways the minority can express their very strong feelings about the ruling outside of having a dissent at all.

    So, yes, it could be pure stupidity, but I think it’s more appropriate to subscribe active maliciousness to the action. But I do see your point.

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