And now I have time to expand on this. The difference between a Scalia and a Roberts has to do with their fundamental philosophies and approaches to being a SCOTUS justice.
Take as given that I tend almost all the time to disagree with the conclusions that both men reached. I don't see a huge difference there.
Scalia saw his role as digging at fundamentals. He valued scholarship and though I think he was deeply wrong in his originalism at least he was willing to put together an argumentation framework for it. Occasionally I found his framework persuasive - he changed my mind on how to read the Second Amendment.
Roberts famously in his confirmation hearing saw the role of Justice as being like the umpire who calls balls and strikes. I just think that's terribly wrong. The role of a SCOTUS justice is not to tell us whether the ball is above or below the knee, but to figure out what that rule means - does it mean the top of the knee, the middle, or the bottom? What if the umpire can't see the player's knee at the moment the ball comes across the plate? I thought Roberts' ruling on the ACA was terrible - it was a tax because he said so.
You could argue with Scalia's reasoning (as I said, I often thought he was full of it) but it was an argument for reasoning. With Roberts you're often reduced to "yes it is" vs "no it isn't" which I find much less productive.
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Date: 2016-11-10 04:35 pm (UTC)Take as given that I tend almost all the time to disagree with the conclusions that both men reached. I don't see a huge difference there.
Scalia saw his role as digging at fundamentals. He valued scholarship and though I think he was deeply wrong in his originalism at least he was willing to put together an argumentation framework for it. Occasionally I found his framework persuasive - he changed my mind on how to read the Second Amendment.
Roberts famously in his confirmation hearing saw the role of Justice as being like the umpire who calls balls and strikes. I just think that's terribly wrong. The role of a SCOTUS justice is not to tell us whether the ball is above or below the knee, but to figure out what that rule means - does it mean the top of the knee, the middle, or the bottom? What if the umpire can't see the player's knee at the moment the ball comes across the plate? I thought Roberts' ruling on the ACA was terrible - it was a tax because he said so.
You could argue with Scalia's reasoning (as I said, I often thought he was full of it) but it was an argument for reasoning. With Roberts you're often reduced to "yes it is" vs "no it isn't" which I find much less productive.