Has Justice Scalia started drinking Justice Breyer’s “Active Liberty” Kool-Aid? Really?!?!

Though the line has already been noted by Grits in a prior comment, I cannot help but blog more about one key sentence at the start of Justice Scalia’s dissent in the Plata SCOTUS case handed down today.  As he revs up his attack rhetoric, Justice Scalia asserts: “There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa.” 

Huh?  Or to paraphrase Seth Myers et al., Really!?! Justice Scalia!?!  Really!?!

Perhaps others can help me understand how this line about tradition and common sense shaping the law conforms to Justice Scalia’s usual textualist philosophy; to me, this approach to jurisprudence sounds a lot more like what we usually expect to hear from Justice Breyer.  Indeed, throughout Justice Breyer’s book “Active Liberty” one can readily find frequent references to tradition and common sense to justify Justice Breyer’s dynamic approach to constitutional and statutory interpretation.  Indeed, Justice Breyer has often stressed tradition and common sense to complain about Justice Scalia’s work in landmark cases like Heller and Blakely. 

So, Justice Scalia, is the mere prospect of a federal court ordering a state to release its least dangerous offenders in the face of extreme and long-standing overcrowding all it takes to prompt you to give up a career commitment to textualism?  Really!?! Justice Scalia!?!  Really!?!

Today’s main posts on the Plata ruling:

• In 5-4 split, SCOTUS (per Justice Kennedy) affirms California prison reduction order
• Some big-time rhetoric in big-time SCOTUS Plata prison ruling