Scalia Rebuffs Criticism of Dissent in Immigration Case

U.S. Supreme Court Justice Antonin Scalia rejected criticism that he improperly went outside the court record in his dissent to last term’s decision on Arizona’s immigration law, saying his consideration of presidential remarks was appropriate.

President Barack Obama’s statements that his administration wouldn’t enforce parts of immigration law, made after the high court heard the case, brought into question the government’s arguments, Scalia said in an interview today on “Fox News Sunday.” He dismissed criticism by U.S. Circuit Judge Richard Posner, who said Scalia’s dissent read like a campaign speech.

“He’s a court of appeals judge, isn’t he?” Scalia, 76, said of Posner. “He doesn’t sit in judgment of my opinions as far as I’m concerned.”

The Supreme Court scaled back Arizona’s first-of-its-kind crackdown on illegal immigrants in a 5-3 decision June 25, striking down three provisions while asserting the federal government has exclusive power to set immigration policy.

Solicitor General Donald Verrilli had argued that only the U.S. can decide how to allocate resources to immigration enforcement, Scalia said. Obama later said the administration would no longer enforce the law regarding deportations of children of illegal immigrants “because it was the right thing to do,” demonstrating that priorities weren’t the issue and leaving Arizona free to enforce the federal statutes on its own, Scalia said in his dissent.

President’s Remarks

“I didn’t say he had no authority to do it,” Scalia said today of the president’s remarks. “I said he may well be right in doing it. But it demonstrates the point that Arizona is being prevented in enforcing immigration law even when the executive, rightly or wrongly, simply chooses not to enforce it.”

The court’s split decisions on hotly contested political cases, such the Affordable Health Care Act last month, reflects the division of judicial philosophy rather than partisanship, Scalia said.

Since Justices John Paul Stevens and David Souter left the court, rulings have often been split, with five Republican-appointed judges on one side and four Democratic nominees on the other, Scalia said.

“That doesn’t show they are voting politics,” Scalia said. “It shows that they had been selected because of their judicial philosophy.”

Scalia waved off what critics have called a belligerent stance toward opponents in court, opinions and public comments.

“It’s fun to push buttons,” Scalia said. “When Richard Posner comes out with a statement like that, I should come out with a statement equally provocative.”

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