Just finished reading Scalia’s opinion and the dissenting. Fuck me, Scalia is a razor. No matter what you think of his individual positions, his legal and historical mind is razor sharp, and it’s for that reason that he is so respected as a Justice, even by his many detractors.
Fantastic opinion, and it pretty much sums up my problems with those legal dissents.
JUSTICE STEVENS moves on to the “most basic” con-
straint on subjectivity his theory offers: that he would
"esche[w] attempts to provide any all-purpose, top-down,
totalizing theory of “liberty.” " Post, at 22. The notion that
the absence of a coherent theory of the Due Process Clause
will somehow curtail judicial caprice is at war with reason.
Indeterminacy means opportunity for courts to impose
whatever rule they like; it is the problem, not the solution.
The idea that interpretive pluralism would reduce courts’
ability to impose their will on the ignorant masses is not
merely naive, but absurd. If there are no right answers,
there are no wrong answers either.
JUSTICE STEVENS also argues that requiring courts to
show “respect for the democratic process” should serve as
a constraint. Post, at 23. That is true, but JUSTICE
STEVENS would have them show respect in an extraordi-
nary manner. In his view, if a right “is already being
given careful consideration in, and subjected to ongoing
calibration by, the States, judicial enforcement may not be
appropriate.” Ibid. In other words, a right, such as the
right to keep and bear arms, that has long been recognized
but on which the States are considering restrictions, ap-
parently deserves less protection, while a privilege the
political branches (instruments of the democratic process)
have withheld entirely and continue to withhold, deserves
more. That topsy-turvy approach conveniently accom-
plishes the objective of ensuring that the rights this Court
held protected in Casey, Lawrence, and other such cases fit
the theory but at the cost of insulting rather than re-
specting the democratic process. "