The usual rule I impose upon myself is to not write about contemporary Supreme Court cases. They get enough play and insight as it is, and I leave that stuff to my academic scholarship.
But I'm going to depart -- abeit incredibly briefly -- from that guideline in this exceptional circumstance. Because when I read this opinion, I found myself saying: "You know, even though no one else on the Court agrees with him, I think that Justice Scalia is correct."
That's rare. As in, rare. So I thought I'd at least mention it.
Have Nino and I occasionally agreed? Of course. In plenty of 9-0's, 8-1's, and even 5-4's. But rarely when he's out on his own.
Nonetheless, I think he persuades me that his approach is the better one here. For slightly different reasons than the ones he articulates; for example, I'd emphasize that abandoning precedent is more permissible when a prior holding is "badly reasoned and produces erroneous and unconstitutional results," as opposed to Justice Scalia's phrasing that favors departure when precedent is "badly reasoned and produces erroneous (in this case unconstitutional) results."
Still, even with my various reservations, of all the different opinions in this case, I think that I find Justice Scalia's solitary voice the most persuasive. So thought I'd mention it.
See what you think.
