So Scalia commenting on how things are, or are not, Constitutional is considered being a politician? He was chosen for the Supremes because he’s a smart man, who actually THINKS about the Constitutionality of laws. I can’t see why on earth that would be a problem, but then, I don’t look at life through a radical liberal lens.
I do wish sometimes that SCOTUS justices would go beyond merely saying things are unconstititional, and say what that implies: that they are illegitimate. The Court has no authority to make things be constitutional or unconstitutional. If the court is doing its job legitimately and it says something is constitutional, that something will be constitutional. Likewise if it is doing its job legitimately and it says something is unconstitutional. On the other hand, the notion that a Supreme Court declaration that something is unconstitutional necessarily implies that the thing actually is unconstitutional only holds if one assumes that the Supreme Court will always do its job legitimately; given the number of 5-4 decisions on what should clear-cut cases, such an assumption would seem dubious at best.