Obamacare might not be out yet, but several liberal professors are already practicing their talking points in case it goes the way they don’t like. And, of course, their target is the Court’s biggest celebrity conservative, Justice Antonin Scalia.
Let’s start with Paul Campos, a professor of law at the University of Colorado at Boulder who apparently took issue with Scalia’s fiery dissent in the case of United States vs. Arizona. Campos went straight for the jugular, accusing the Justice of being past his expiration date:
Like many a graying eminence, Scalia is becoming a caricature of his younger self. This is a serious problem, given that the Supreme Court continues to devolve into an institution dominated by cranky senior citizens, who are harder to get rid of than the longest-serving members of the old Soviet politburo. Indeed, Scalia seems headed down the path previously trod by those justices who clearly didn’t know when to hang up their robes. His career is beginning to resemble that of William O. Douglas, another justice who allowed a combination of immense arrogance and creeping decrepitude to transform him from a formidable figure into a ranting old man, whose performance on the bench became so embarrassing and disturbing that it is said the other justices made an informal agreement not to allow any decision to turn on Douglas’ vote.
Nor is this the first time Campos has attacked Scalia. Campos’ blog post from literally the day before this one, headlined “Scalia’s scary thinking,” makes the case that Justice Scalia has no respect for precedent:
Justice Scalia spent his career as a lawyer, law professor and judge in that legal world – a world in which [Wickard v. Filburn] was no more eligible for serious reconsideration than Brown v. Board of Education or Marbury v. Madison are today. It ought to be obvious that if someone like Scalia can, at this point in a half-century-long career, decide that Wickard isn’t a binding precedent, then the idea of binding precedent is essentially empty, which in turn highlights the inevitable emptiness of the idea of any useful distinction between law and politics.
But this is not obvious, least of all to Justice Scalia, who I have no real doubt actually believes the things he says and writes, no matter how many times his public acts contradict his avowed beliefs. Scalia believes in a version of the rule of law whose existence is refuted by nothing so well as his own career. And that ultimately is more disturbing than a career dedicated to the most self-consciously manipulative Machiavellianism.
But these are not merely the railings of one enthusiastically angry professor. Scalia’s dissent in the Arizona case prompted a veritable firestorm of criticism from other professors. Campus Reform has a greatest hits compilation of their responses, including such lovely thoughts as the following:
Adam Winkler, a constitutional law professor at UCLA, suggested in an interview with Talking Points Memo that Scalia had gone crazy or “finally jumped the shark.”
“He claims to respect the founding fathers, but his dissent channels the opponents of the Constitution,” said Winkler.[…]
In a comment to the The Nation, Georgetown Law Professor David Coyle said that the Arizona immigration law was designed to “make life miserable for immigrants” and that “we can and should celebrate the decision for the roadblock it has erected to the state law anti-immigration movement.”
David Weber, Professor of Law at Creighton University, said that Scalia was very “acerbic” and that his opinion is “really a red herring to muddy the argument and somehow upset the populace.”
Lastly, Harvard law professor, Laurence Tribe, said that he thinks Scalia “ought to reconsider the harm he does to the court as an institution when he indulges his famous wit in order to stab the president.”
Tribe’s response, at least, should surprise no one. He was an adviser to the Obama campaign in 2008, and has recently been doing a lot to try and smooth over relations between the Court and President Obama. Nevertheless, the reaction from other corners is surprisingly vehement. In the event that any part of Obamacare is overturned, we expect to see it intensify.