Scalia's Two Cents: Justice Draws Criticism For Political Views in Decisions

Outspoken Justice Antonin Scalia hasn't been afraid to air his opinions.

ByABC News
July 2, 2012, 10:27 AM

March 14, 2013 -- intro: Supreme Court Justice Antonin Scalia, possibly the most outspoken judge in the history of the Supreme Court, has no problem with airing his political opinion in or out of court. Over the years, Scalia has shown his feistiness on any number of issues.

But in recent years, he has become more outspoken, even going so far as to say this month in an opinion that President Obama's immigration policy "boggles the mind."

That decision drew a public rebuke from a well-respected conservative federal appeals court judge, Richard Posner of the 7th Circuit.

"These are fighting words," Posner said on magazine website Slate. "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 Associated Press' Mark Sherman spoke with former Scalia law clerks and lawyers who argue before the Supreme Court, although none of them were named, and they all agreed that the escalation of Scalia's public opinions has drawn notice.

"The 76-year-old Scalia is a gifted writer with a razor wit and willingness to do battle with those on the other side of an issue," Sherman wrote. "Those qualities have made him a powerful voice, an entertaining presence and a magnet for criticism on the court for more than 25 years. Even with that vivid background, some of Scalia's recent remarks stood out in the eyes of court observers." Read Sherman's AP story here.

Scroll through for some of Scalia's more controversial opinions and how he expressed them.

quicklist: 1title: Voting Rights Actcategory: February 2013text: "There's no question that the Voting Rights Act has done enormous good." But he said that when Congress reauthorized it, it should have considered a new determination of which states should be covered. "Maybe the whole country should be covered. Or maybe certain parts of the country should be covered based on a formula that is grounded in up-to-date statistics, " he said.

Justice Antonin Scalia spoke at length about the fact that the 2006 congressional vote to reauthorized the act was nearly unanimous.

"I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.

"And I am fairly confident it will be re-enacted in perpetuity unless a court can say it does not comport with the Constitution," he continued. "You have to show, when you are treating different states differently, that there's a good reason for it. "

Scalia said, "That's the concern that those of us who have some questions about this statute have. It's a concern that this is not the kind of a question you can leave to Congress

quicklist: 2title: DREAM Act and Arizona's SB1070category: June 2012text: "But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States' borders unprotected against immigrants whom those laws would exclude. 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?

Scalia went on: "The president said at a news conference that the new program is 'the right thing to do' in light of Congress's failure to pass the administration's proposed revision of the Immigration Act," Scalia, a Reagan appointee, wrote in his dissent. "Perhaps it is, though Arizona may not think so. But 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."

quicklist: 3title: Terrorism Suspects Held at Guantanamo Bay Have a Right to Seek Release in Federal Courtcategory: June 2012text: "America is at war with radical Islamists ... (This ruling) will almost certainly cause more Americans to be killed....The nation will live to regret what the court has done today."

quicklist: 4title: Affordable Care Actcategory: March 2012text: "Could you define the market -- everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli."

quicklist: 5title: Citizens United v. FECcategory: Jan. 2012text: "I don't care who is doing the speech — the more the merrier. People are not stupid. If they don't like it, they'll shut it off."

quicklist: 6title: Equal Protection Actcategory: Jan. 2011text: "Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society."

quicklist: 7title: Displaying a Cross in Mojave National Preservecategory: Oct. 2009text: In response to the statement that Jews would not want their tombs marked with a Christian symbol, Scalia said, "The cross is the most common symbol of the resting place of the dead. What would you have them erect? Some conglomerate of a cross, a Star of David and, you know, a Muslim half moon and star?"

"I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead," he continued. "I think that's an outrageous conclusion."

quicklist: 8title: Abortioncategory: April 2008text: "It has nothing to do with how I decide cases," Scalia replied. "My job is to interpret the Constitution accurately. And indeed, there are anti-abortion people who think that the Constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that's still in the womb the way you treat other human beings. I think that's wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons. You don't count pregnant women twice."

quicklist: 11title: Use of Physical Interrogation Techniquescategory: Feb. 2008Text: "Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the Constitution?"

quicklist: 12title: Legality of Prohibiting Sodomycategory:June 2003text: "Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct."

quicklist: 13title: Virginia Military Institute Only Admitting Mencategory: June 1996text: "The Court adopts the suggestion of the Court of Appeals that it is not possible for "one institution with autonomy, but with no authority over any other state institution, [to] give effect to a state policy of diversity among institutions … If it were impossible for individual human beings (or groups of human beings) to act autonomously in effective pursuit of a common goal, the game of soccer would not exist."

quicklist: 14title: Disallowing Teaching Creationism in Public Schoolscategory: June 1986text: "He may have thought the bill would provide jobs for his district, or may have wanted to make amends with a faction of his party he had alienated on another vote, or he may have been a close friend of the bill's sponsor, or he may have been repaying a favor he owed the majority leader, or he may have hoped the governor would appreciate his vote and make a fund-raising appearance for him, or he may have been pressured to vote for a bill he disliked by a wealthy contributor or by a flood of constituent mail, or he may have been seeking favorable publicity, or he may have been reluctant to hurt the feelings of a loyal staff member who worked on the bill, or he may have been settling an old score with a legislator who opposed the bill, or he may have been mad at his wife, who opposed the bill, or he may have been intoxicated and utterly unmotivated when the vote was called, or he may have accidentally voted "yes" instead of "no," or, of course, he may have had (and very likely did have) a combination of some of the above and many other motivations. To look for the sole purpose of even a single legislator is probably to look for something that does not exist."