I'm with Dionne: Scalia must go

By Michael J.W. Stickings

First, let me say I really hope Tom Goldstein is right and the Court doesn't strike down the Affordable Care Act's individual mandate (and/or more of the law).

Of course, there's really no way the mandate is unconstitutional. And as many sensible observers have noted, not so long ago it would have been ridiculous to suggest as much, even in conservative circles, where a market-oriented reform like this one was the popular way to go.

But now is not then. Conservatives have waged a relentless campaign against health-care reforms that they themselves once proposed and have politicized the judiciary to the point where the Court is now a largely partisan body -- partisan in the sense that a conservative majority is engaging in partisan judicial activism. (James Fallows addressed this the other day. In the midst of an all-out coup, conservatives both on and off the Court are assaulting, and undoing, American democracy.)

Generally, it makes little sense, particularly for a non-expert SCOTUS watcher such as myself (like most in the popular media, where general cluelessness prevails), to make predictions. Still, while I hope Goldstein is right, I fear, and suspect, he's wrong and that the Court will narrowly vote to strike down the individual mandate at the very least.

But we'll see.

For now, second, I'll just note that I'm with Dionne on the matter of the most reprehensible figure on the Court, right-wing ideologue Antonin Scalia:

Justice Antonin Scalia needs to resign from the Supreme Court.

He'd have a lot of things to do. He's a fine public speaker and teacher. He'd be a heck of a columnist and blogger. But he really seems to aspire to being a politician — and that's the problem.

So often, Scalia has chosen to ignore the obligation of a Supreme Court justice to be, and appear to be, impartial. He's turned "judicial restraint" into an oxymoronic phrase. But what he did this week, when the court announced its decision on the Arizona immigration law, should be the end of the line.

Not content with issuing a fiery written dissent, Scalia offered a bench statement questioning President Obama's decision to allow some immigrants who were brought to the United States illegally as children to stay. Obama's move had nothing to do with the case in question. Scalia just wanted you to know where he stood.

*****

What boggles the mind is that Scalia thought it proper to jump into this political argument. And when he went on to a broader denunciation of federal policies, he sounded just like an Arizona Senate candidate.

In fact, on this matter I'm also with the Post's editorial board -- and that board is hardly a bastion of liberalism these days -- which stated, alongside Dionne, that Scalia's "lapses of judicial temperament," putting it mildly, "endanger not only his jurisprudential legacy but the legitimacy of the high court."

Conservatives, of course, are rushing to Scalia's defence, as they always do. But imagine if this were a liberal justice engaging in such partisan activity. Conservatives would be going ballistic, claiming that any such politicization of the Court runs counter to the hallowed intentions of the Founders.

But it's not liberals who are doing this, it's conservatives. They're waging a war against the very foundations of American constitutional democracy, and Scalia is right at the forefront of the war, conservatism's leading judicial advocate for right-wing judicial activism.

He must go, but that alone won't be enough. The whole conservative effort must be repelled. It's what the Founders, far more intelligent and far more liberal than conservatives would have us believe, would want.