The most useful way to read a Supreme Court decision, I figured out years ago, is to start with the dissents. That way, you can proceed to the majority opinion as a better informed reader, with the full range of possibilities in view: What arguments did the majority reject? Which did it respond to, and which did it not even bother to acknowledge? Most important, what was the disagreement really about?
Taking that approach to the Arizona immigration decision the court issued on Monday, it is pellucidly clear from the dissenting opinions of Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. that Arizona lost big and that the decision amounted not to the split decision of early news reports but a major reaffirmation of federal authority. There has been considerable attention to Justice Scalia’s political rant – which he delivered from the bench as well as on paper — against President Obama’s immigration policies. It was a cringe-making screed for sure, even if not altogether surprising given that Justice Scalia had actually stooped to invoking the broccoli threat during the health care argument.
But aside from his self-indulgent posturing, what was most revealing about Justice Scalia’s dissenting opinion was what passed for actual legal analysis, his charge that Justice Anthony M. Kennedy’s majority opinion was so dismissive of Arizona’s effort to “protect its sovereignty” through the invalidated provisions of S.B. 1070, the law that was at issue, that “we should cease referring to it as a sovereign state.”
Pretty strong stuff. I turned to the majority opinion with mounting anticipation. What on earth had the court done? The first thing that jumped out at me was the name of Chief Justice John G. Roberts Jr. on Justice Kennedy’s opinion, along with the expected names of Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor. The chief justice was, apparently, in complete agreement with the majority as evidenced by his silence – the dog that didn’t bark, you might say. He felt no need to write separately to express even a shade of difference from the majority or a hint of sympathy with the dissenting views of his usual allies. Beyond Justice Scalia’s transparent dislike for the president, perhaps it was the chief justice’s apostasy that drove him around the bend.