Jansing and Co | June 26, 2012
>>> from health care and immigration to money and politics, the supreme court is certainly shaping a lot of the political debate . but new questions are being raised about justices getting political. today specifically, justice scalia . he issued bench statement with his opinion that took a shot at the obama administration's new immigration policy not to deport some young people brought here by their parents. scalia said it boggles the mind because federal officials have been unable to remedy the problem and, indeed, have recently shown that they are simply unwilling to do so. joining me now, a lawrence harvard professor who argued bush v gore for al gore . it is good see you. good morning.
>> good morning, chris.
>> so i'm not a constitutional scholar, international airport a lawyer, i don't want to play one on tv, but the thing that struck me when i read this statement from justice scalia that one of the footnotes actually mentioned an article in the "new york times," not a point of law, not a court case but the "new york times." i'm wondering what you made of that and this statement.
>> well, it wasn't so much the reference to the new york times that boggled my mind. it was the fact that justice scalia went out of his way in his dissent to make reference to something that was not part of the case, to make it clear that the president is out of line in offering part of the dream act on his own and his own views didn't agree with the president's politically. to go that far when the court is plunging itself into the middle of these politically divisive issues but certainly not a step on justice scalia 's part. i do think that the court will surprise a lot of people when it probably upholds the affordable care act in a decision by chief justice roberts .
>> you think it will be upheld in its entirety?
>> everybody can be wrong, i can be wrong but i do think it will be upheld. i do think that will be a partial ant dote the way people felt, not only after bush versus gore , but citizens united but other cases where the court has reached further than it needed to to grab onto issues that were the middle of the -- i think justice scalia in particular ought to consider the harm to the court as an institution when he indulges his famous wit in order to stab the president.
>> there are a lot of people who have written that they are concern about the perception of the court . in terms of its popularity t is down in the 40s, the most recent polls have shown that the american people have concerns about the supreme court being split much the way that america is divided politically. are their concerns justified?
>> i think justified to some extent. in a nation like ours where issues are mixed up and often intertwined is often criticized. the people on the losing end often say that it was just politics but i think it's the court 's responsibility to act like a court to not reach out to issues not presented by the case, to not make comments about a recent press conference the president holds to make a political point. when that happens it is not simply a matter of the law being politically charged but a matter of the court being politically unwise. critical we not lose faith in our institution, bad enough when people, 9%, one wonders who they are, have faith in congress but when people lose faith even in judge house are honestly trying to do a good job, thank you endan endangers the institutional stability of the country.
>> as someone who knows justice roberts , do you think he has, as has been reported, great concerns about the court being viewed as too poll lilt sized and feels strong think is his job to somehow right it?
>> well, i think he is certainly committed to the idea that the court should-recognized as an institution that as he put it during his confirmation hearings is a kind of neutral umpire there is no such thing as total neutrality when it comes to politically charged issues like abortion and the structure of political campaigns , but at least it's important for the judges not to basically take off their -- take off their robes and allow themselves to simply shoot off at the mouth, as some of them have begun doing. and i think that the chief justice is likely to be concerned about the place of the court in history and is not likely to want the court to continue to be as deeply and politically divide. doesn't mean he will depart from his philosophy. you can be deeply conservative and believe the affordable care act is completely consistent with the united states constitution . i do think he is most likely to come out.
>> with he have been holding our breath, we can exhale. professor lawyers are entribe, flesh sure to have you on the program. thank you.
>> pleasure to be with you.