Scalia, Holder, and Partisan Politics Run Amok

There has been a lot of tension between the three branches of government lately, but it is the Supreme Court's job to be above electoral politics.


A little rivalry among the branches of government is normal, and arguably healthy. The legislative branch doesn't like the executive branch telling it how to spend money (since Congress likes to make those decisions on its own). The executive branch likes to blame Congress (sometimes with good reason) for being unable to make compromises and pass even basic legislation. And there is often a little resentment of the judicial branch, those "unelected" types who are supposed to weigh in on the sense and constitutionality of a law, regardless of pressure from interest groups or hysteria from constituents.

But the creative tension is getting a little too tense these days. The House this week is expected to vote on a censure measure against Attorney General Eric Holder, since Holder refuses to turn over certain documents to a House investigative committee. The panel thinks the administration might be withholding embarrassing documents; the administration thinks the increasingly political oversight committee is on a fishing expedition and witch hunt. They may both be right. The fact that the House for the first time ever is set to vote on a censure resolution aimed at a sitting attorney general is historic and a remarkable comment on the relationship between the branches.

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Normally, the judicial branch—many of them free from the demands of running for office—is a bit above such politics. The Supreme Court, however, is reaching into that territory—not because of its decisions per se, but because of the behavior and individual comments of its justices. Justice Samuel A. Alito, dissenting from the opinion holding that mandatory life sentences for juveniles was unconstitutional, accused his fellow justices of an "elite vision," one suggesting they know better than state legislators elected to make such laws.

Of course they are elite. That's the point. State legislators may be well intentioned, but they often respond to an emotional, even ill-intentioned electorate to get re-elected. Further, they are not necessarily legal scholars. The Supreme Court is made up of legal scholars. That is why they are there; that is why they are called "supreme," and that is why they get to decide if laws are constitutional.

Justice Antonin Scalia, meanwhile, dissented from the ruling striking down much of Arizona's harsh immigration law. But he didn't stop at criticizing the reasoning of the majority. Scalia took it upon himself to criticize an Obama administration decision not to use its resources to deport certain young immigrants brought here illegally by their parents. It was an extraordinary opinion in that the Obama policy was not even before the court. And it takes the wind out of the Supreme Court members' irritation at being dressed down by President Obama at a State of the Union speech for the high court's ruling on unregulated campaign spending. The high court showed its power there, too, this week, ruling to toss out a Montana law banning political spending by businesses. As often happens, the high court had the final word. But the three branches, it seems, have only begun to fight.

  • Peter Roff: Supreme Court Rejects Obama Charge of Racism in Immigration Case
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