Justice Antonin Scalia is no stranger to partisanship — he spent much of last week’s hearing on the Affordable Care Act touting Republican talking points about “broccoli” and “cornhusker kickbacks” rather than examining his very own opinions that establish that health reform is constitutional. Yet, when given an opportunity to echo Republican Fifth Circuit Judge Jerry Smith’s partisan effort to undermine President Obama earlier this week, even Scalia seemed to think that was a bridge too far:
He declined to answer a question about President Barack Obama’s Monday remarks that it would be an “unprecedented, extraordinary step” for justices to overturn the challenged federal health care law.
“We don’t respond to criticism,” Scalia said. “Judges use what’s known as the rope-a-dope trick. It’s judicial tradition.” When the questioner pressed Scalia on who would provide checks and balances to the president, he said that, “We have three branches. They check and balance each other.”
Obviously, Scalia’s comparison between judicial silence and Muhammad Ali’s tactic of tricking his opponent into tiring himself out is not intended to paint the Court’s critics in a favorable light. Nevertheless, it is telling that even the Court’s most strident conservative will not mimic Smith’s transparently partisan tactics.