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Harvard Prof. advises Justice Scalia to stop politicized attacks on president

Harvard Professor of constitutional law Laurence Tribe suggested that Supreme Court Justice Antonin Scalia tone down his political barbs in writing court opinion lest he wishes to drive public opinion of the court down to Congress’ abysmal approval ratings.

“I think Justice 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,” said Tribe, who argued for Al Gore in the Bush vs. Gore 2000 showdown, during a Tuesday appearance on Jansing & Co.

Scalia, appointed to the court by President Ronald Reagan in 1986, is known for his sharp tongue, colorful language, and as a staunch protector of conservative beliefs.

Critics, though, say Scalia crossed a line in writing his dissenting opinion on the court’s ruling on the Arizona immigration law this week when he quoted a statement by the president.

“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,” Scalia wrote in his dissent. “Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.”

Tribe said Scalia’s comment creates an appearance of a politicized court.


“I think it’s the court’s responsibility to act like a court—to not reach out to issues that were not presented by the case, to not make comments about a recent press conference that the president holds just to make a political point,” Tribe told MSNBC host Chris Jansing. “When that happens it’s not simply a matter of the law being politically charged, it’s a matter of the court being politically unwise. It’s critical that we not lose faith in all of our organizations…when people lose faith even in judges who are honestly trying to do a good job, I think that endangers the institutional stability of the country.”

The Supreme Court will issue its finding on the Obama administration’s health care reform law, the Affordable Care Act, this Thursday. Tribe said it’s a chance for the court to prove it’s not as bipartisan as critics might believe.

“I do think the court will surprise a lot of people when it probably upholds the Affordable Care Act,” he said. “I think it will be upheld in its entirety. I do think that will be a partial antidote to the way people felt not only after Bush vs Gore but after Citizens United and a number of other cases where the court has reached further than it needed to, to grab onto issues that were in the middle of the political battle and then often not to act in a particularly judicious way in talking about it.”

Tribe has maintained for some time, even as others have predicted the opposite, that he believes the court will rule in favor of the health care law. On Jansing & Co. he noted that “You can be deeply conservative and still believe that the Affordable Care Act is completely consistent with the United States constitution.”

The Harvard professor counts both President Obama and Supreme Court Chief Justice John Roberts as former students.