“The Supreme Court and the Struggle for Judicial Independence”

The New Yorker’s Jill Lepore chronicles the riveting history of the Supreme Court of the United States. It went from an institution with little power vested in it by the Constitution to an unimpeachable force to be reckoned with.

Meanwhile, interest groups turn their attention to controlling the state judges:

For centuries, the American struggle for a more independent judiciary has been more steadfast than successful. Currently, nearly ninety per cent of state judges run for office. “Spending on judicial campaigns has doubled in the past decade, exceeding $200 million,” Shugerman reports. In 2009, after three Iowa supreme-court judges overturned a defense-of-marriage act, the American Family Association, the National Organization for Marriage, and the Campaign for Working Families together spent more than eight hundred thousand dollars to campaign against their reëlection; all three judges lost.

Recall that the Koch brothers are on their way to spend $400 million on this presidential election alone. Things will get really exciting, once such people get into the state judicial campaigns.


Update: Speaking of this discussion of independence, Scalia’s opinion on the ruling of Arizona v. United States1 turned from judicial dissent to a partisan rant on the state of the alleged scourge of immigration.

Scalia begins his criticism with a statement on cracking the nut of immigration by state versus federal authority. You can ignore this quoted part, if you want—it’s there for context.

It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30.4 If an individual unlawfully present in the United States

  • “came to the United States under the age of sixteen;
  • “has continuously resided in the United States for at least five years … ,
  • “is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran … ,
  • “has not been convicted of a [serious crime]; and
  • “is not above the age of thirty,”

then U. S. immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.”6 The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement.

This is where the gloves come off:

The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so.

The crescendo rises to a rant tantamount to a bid for public office in Arizona:

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. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.

Suddenly, all Scalia’s beloved citations are nowhere to be seen. To no surprise; this is a political rant, not the judicial grounds for dissent on the ruling.


It is to no one’s surprise that Scalia actually believes this, but in these statements, he side-steps his obligation as an arbiter of the rule of Law whose branch of authority is intended to be separate from that of the executive and legislative power of democracy, unbeholden to those who appointed him.

Many will laugh at this idea of what supreme justices are supposed to aspire to, but his positively secessional statement of—political—dissent is itself a mockery of the system and what it has become.


Update: E.J. Dionne has the perfect column on why Scalia’s behaviour and affiliation with the Supreme Court is completely untenable. An excerpt:

Unaccountable power can lead to arrogance. That’s why justices typically feel bound by rules and conventions that Scalia seems to take joy in ignoring. Recall a 2004 incident. Three weeks after the Supreme Court announced it would hear a case over whether the White House needed to turn over documents from an energy task force that Dick Cheney had headed, Scalia went off on Air Force Two for a duck-hunting trip with the vice president.


  1. Arizona v. United States (.pdf), page 20 on paper, 49 digitally.