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Scalia v. Roberts

Tucson Police Officer Angel Ramirez arrests a man for trespassing May 29, 2010 in Tucson, Arizona.

I never claim to know what words like "right" or "conservatism" mean. So I was happy recently to encounter a discussion of the respective rightwardness of two Supreme Court Justices, Scalia and Roberts. It gives me grist for my anyway restless mental mill.

As you, my well informed reader, probably remember, Justice Roberts cast the critical vote rescuing (most of) Obamacare from a constitutional challenge. Scalia would have struck it down.
Also, and more recently, Scalia voted to strike down state laws that allow for the swabbing for the purposes of DNA collection of all arrestees. Voting with Ginsburg, Sotomayor, and Kagan -- not the company in which he is accustomed to find himself.  On the other hand, Roberts voted with the majority (consisting also of Kennedy, Alito, Thomas, and Breyer) allowing the practice.

In both cases, Scalia was adopting [and given his originalist ideas, attributing to the Framers] a libertarian conception of government, limiting its social-welfare and its law-enforcement measures.
In one of those cases, he was trying to use COTUS to limit the reach of the federal govt specifically. In the DNA-swabbing case, though, he was working within the accepted extension of constitutional protections through the 14th amendment to limit the states as well.

In both of these cases, meanwhile, Roberts was voting to let existing legislation stand, at each level of govt, and one can consider that a natural result of 'conservative' [?] critiques of judicial activism over the years. Oliver Wendell Holmes said it was his job to help the people go to hell, if they through the legislators they elect decide that's where they want to go.  [I'm paraphrasing from memory, I'll try to find the precise quote some other time.]

Anyway, I would imagine that both Roberts and Scalia think of themselves as in some important sense conservative. Roberts probably knows that Holmes quote from memory and thinks of that as integral to his jurisprudence. Roberts and Scalia were  each nominated to the bench by a President who thought of himself as conservative.

So ... is one of them a better harbinger than the other of what 'conservative' means?

The above photo comes from SLATE's discussion of another recent SCOTUS decision, one in which Scalia and Roberts were both on the side that must surprise their Roger-Ailes-informed friends, a 7 to 2 decision striking down Arizona's voter-registration rules. Scalia actually wrote the majority opinion in this one.


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