Reports that Chief Justice John Roberts changed his opinion in last month’s Supreme Court ruling on Obamacare from voting to strike it down to upholding the law are unreliable, according to Justice Antonin Scalia, who appeared this morning on Fox News Sunday with Chris Wallace.
Wallace pressed the justice to disclose whether Roberts had changed his mind, but Scalia responded telling him to ask the chief justice about his decision, noting that he doesn’t discuss internal court proceedings in public.
“[Y]ou , you shouldn’t believe what you read about internal court proceedings, because the reporter who reports that is either: A, lying, which can be done with impunity, because as you know, we don’t respond. It’s the tradition of common law judges to lay back and take it,” Scalia said. “You don’t respond in the press. Or B, that reporter had the information from some who was breaking the oath of confidentiality, which means that’s an unreliable person.
“So either way you should not put any stock in reports about what was going on in the secrecy of the court.”
Scalia responded to questions from Wallace asking if President Obama’s warning the Supreme Court not to do an “unprecedented” thing and overrule Obamacare because it was an act of Congress had any impact on the court’s decision making, saying it had no effect.
“No. What can he do to me? Or to any of us? We have life tenure. We have it precisely so we will not be influenced by politics, by threats from anybody,” Scalia said, noting that the high court has overruled countless acts of Congress over the past 200 years going back to Marbury v. Madison in 1803 and that the court has an obligation to go against the will of the majority in certain cases.
The justice also discussed his dissent in last month’s Arizona immigration case, denying accusations from a federal appeals court judge, Richard Posner, who suggested he had written a “campaign speech” rather than an opinion.
Scalia replied saying the lower-court judge had no business sitting in judgment of his opinions and that those who think like him failed to read his comments in context. He then suggested that the Obama administration had no right to tell Arizona that it could not enforce federal immigration laws that it refused to enforce.
He was quick to deny reports that the Supreme Court has become politicized after Wallace pressed him on the issue in connection with the court’s decisions on Obamacare and campaign finance in the 2010 Citizens United case.
“Oh, I don’t – I don’t think – I don’t think the court is political at all,” Scalia said.
The polarization of the court between conservative justices who interpret the Constitution based on what it is said to have meant when the framer’s wrote it and liberal justices who believe it should be interpreted in the light of contemporary values and experiences has been by design, according to Scalia.
“The Republicans have been looking for, you know, originalist and textualist and restrained judges for 50 years. And the Democrats have been looking for the opposite, for people who believe in Roe v. Wade,” Scalia said. “Why should it be a surprise that after, you know, assiduously trying to get people with these philosophies, they end up with this philosophies?”
These philosophies matter especially when it comes down to issues like abortion, according Scalia, noting that the generalized right to privacy that undergirds Roe v. Wade is found nowhere in the text of the Constitution.
Scalia then argued that legislatures should be the ones deciding issues related to abortion rather than the courts.