Next to Last of the Summer Whine

Today turned out not to be GOPerdammerung at the Supreme Court; if anything, it was a bit of a respite. So, Miller v. Alabama, for example, found unconstitutional a statutory scheme which required the imposition of a mandatory sentence of life imprisonment without parole for juveniles found guilty of homicide. Southern Union Co. v. United States extended the right to a jury trial as to all acts which enhance punishment to encompass fines--a ruling in favor of big business, and so one which fits one narrative about the Roberts Court, but one can hardly cavil at anything that expands the right of the accused to trial by jury.

The bad news of today's rulings, American Tradition Partnership, Inc. v. Bullock, was hardly surprising; the Court refused to find that Citizens United did not bar state laws forbidding corporate expenditures on behalf of candidates, even where, as here, the state had a history of corporate corruption in elections (a fact not present in Citizens United). The result is deplorable--even more so that the original decision, in that the very entities that create corporations are unable to regulate them, but hardly surprising. (This might have been one of the few divergences between the First Amendment as written ("Congress shall... make no law abridging...") and as incorporated by the Fourteenth Amendment; on the other hand, I'm not sure opening a path to a federalism approach to the First Amendment is a good idea, especially with this lot).

Arizona v. United States found most of the Arizona immigration law sections challenged by the Obama Administration preempted by federal law; as Scotusblog helpfully summarizes:

The four provisions struck down include:

(1) Section 2(B), which requires state and local police to check the immigration status of persons about whom they have a reasonable suspicion of being undocumented;

(2) Section 3, which would have made it a crime not to complete or carry an “alien registration document” (and is directly contrary to the Court’s decision in Hines v. Davidowitz

(3) Section 5(C), which criminalizes the conduct of undocumented employees and goes well beyond the civil sanctions that U.S. immigration law allows to be imposed on employers of undocumented workers; and

(4) Section 6, which allows for a warrantless arrest if the “officer has probable cause to believe [that a person] has committed any public offense that makes the person removable from the United States” under federal immigration law.

The infamous "show me your papers" section, which "requires state law enforcement officials to determine the immigration status of anyone they stop or arrest if there is reason to suspect that the individual might be an illegal immigrant." That section was found not to be unconstitutional on its face--if it is subsequently demonstrated to be applied in a discriminatory fashion, the Court ruled, it too could fall. On balance, this case turned out better than expected, as far as I am concerned.

The bench statement of dissent by Justice Scalia in the Arizona case is epic; both comic and tragic at the same time. The comedy is that the Justice who has just this month published a learned text arguing that "[t]he descent into social rancor over judicial decisions is largely traceable to nontextual means of interpretation, which erode society's confidence in a rule of law that evidently has no agreed-on meaning," makes a stunningly nontextual argument for upholding Arizona's law in its entirely:

As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so.

(Full text here.)

Scalia asks the rhetorical question, "Are the sovereign states at the mercy of the federal Executive's refusal to enforce the Nation's immigration laws?" Um, yah. Just like the other federal laws. That's why it's called preemption, Nino. Where did the states get the right to deputize themselves junior G-men and supersede the DOJ's exercise of prosecutorial and investigatory discretion? And no, that's not just a sneer. Let me put it more properly: Whether or not Arizona is a sovereign state in the Articles of Confederation sense (Really? Articles of Confederation? How did they survive the ratification of the Constitution? And I seem to remember some minor unpleasantness in the mid-Nineteenth Century that addressed the nature of state sovereignty, as well as the duty of the Executive to kill vampires), certainly the United States is a sovereign. And where, as here, Congress has occupied the field, the text--Article VI, sec. 2, provides the answer:

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, anything in the Constitution or laws of any State to the contrary notwithstanding.

So the comedy is that Mr. Textualist is riding his emotions and scrapping the text in a flow of anti-immigrant fervor. The tragedy is the very same fact. Scalia was once very, very much better than this. In flashes, he still can be. But now his emotionally-driven performances undermine the values he has articulated his whole career, and do so at a time when textualism should, this liberal agrees, be the lodestar of constitutional interpretation. But since Scalia doesn't apply his own rule when his personal passions are engaged--why, who should take him or his arguments for textualism seriously?