Federal Judiciary

Scalia's Opinion, Roberts' Majority

By Marshall Manson

Today's opinion in the Heller case is classic Scalia. Founded on a profound and in-depth historical analysis loaded with detail, Scalia's opinion defines originalism. For 54 pages of rhetorical flourish, he constructs an overwhelming argument and disposes in detail of the dissenters' "wrong headed" contentions. Every word is authentically his.

Until page 54.

There we find a section that seems a bit out of place among Scalia's defining second amendment opus. In simple, straightforward language, Section III of the majority opinion limits the impact of everything Scalia had previously presented. It is the very definition of judicial modesty.

And to my mind, this section is the illustration of the Chief Justice's hand at work behind the scenes. The impact, I would wager, could have been the critical difference between a five vote majority with no concurrences or partial joiners. The result? A clear, decisive decision from the high court -- a rarity in major cases in recent years.

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Full post as published by ConfirmThem on June 26, 2008 (boomark / email).