Scalia vs. Roberts: Conservative Face-Off on the Supreme Court

The law, lawyers, and the court.
May 24 2013 11:24 AM

Scalia vs. Roberts

The conservative justices faced off over Obamacare—now they’re dueling again.

U.S. Supreme Court Associate Justice Antonin Scalia (L) and Chief Justice John Roberts talk.
The ways in which Justice Scalia and Chief Justice Roberts don't see eye-to-eye are becoming more apparent

Photo by Chip Somodevilla/Getty Images

Last June, Chief Justice John Roberts and Justice Antonin Scalia went at each other over Obamacare. Roberts famously joined with the court’s liberals to uphold most of the health care law, handing the president a victory, while Scalia voted with the court’s conservative bloc to kill the law. In the process, Roberts celebrated judicial restraint, which counsels against striking down acts of Congress, and Scalia mouthed Tea Party talking points, which promote going after federal laws and regulation by any means necessary. Now the two conservative justices are dueling again—only they’ve switched sides.

In City of Arlington, Texas v. FCC, a ruling this week that allows the Federal Communications Commission to trump state and local zoning laws for cellphone towers, it’s Roberts in dissent who’s playing Tea Party darling, while Scalia lectures him on the importance of judicial modesty. Arlington illustrates that while Roberts and Scalia agree about the goal of reining in the federal government, they disagree, sharply, about how to do it. Scalia favors bold strokes such as striking down Obamacare, and Roberts prefers a slower, creeping, case-by-case dismantling of federal power.

The underlying dispute in Arlington is pretty boring. Federal law requires state and local governments to approve or deny an application to site a cellphone tower within a “reasonable period of time,” and the FCC issued rules defining that phrase. The City of Arlington, Texas, challenged the FCC’s authority to make these rules. Scalia, joined by Justice Clarence Thomas and the court’s four liberals, rejected that challenge under longstanding rules that require judges to defer to reasonable judgments made by federal agencies.

Advertisement

What makes the opinions in Arlington catnip for court-watchers is the sharp exchange between Scalia and Roberts over judicial power to check the federal government. Echoing the libertarian canard that “the Framers could hardly have envisioned today’s ‘vast and varied federal bureaucracy,’ ” Roberts decried the government for its “thousands of pages of regulations” and agencies such as the FCC for “poking into every nook and cranny of daily life.” Worse yet, he said, the federal government keeps growing and growing, with new agencies—and their “potent brew of executive, legislative, and judicial power”—multiplying each year. Quite remarkably, Roberts’ Exhibit A is Obamacare, never mind that the law owes its existence to him.

Having been thwarted by Roberts in his effort to throw out the ACA entirely, Scalia wasn’t about to join Roberts in his backdoor, incremental approach in Arlington, which, in Scalia’s words, involved “sifting through the entrails of vast statutory schemes.” Scalia also accused Roberts of pushing to overturn or gut Chevron v. Natural Resources Defense Council, a unanimous landmark 1984 decision. Written by progressive stalwart John Paul Stevens, Chevron has gained adherents across the ideological spectrum—including Scalia and Thomas—for its success in reining in judges. Above all, Chevron keeps judges from simply making policy from the bench, instead requiring them to accept the reasonable conclusions of government experts on complicated (and important) issues like climate change, clean water, food and drug safety, and, in this case, the siting of cellphone towers. According to Scalia, Roberts’ approach would replace the relative stability of judges deferring to agencies with the “chaos” of judges trying to second-guess every regulation issued by federal agencies to prevent bureaucratic overreach.

While the Roberts vs. Scalia face-off is mainly about style and tactics, not ideology—they both agree on the goal of reducing the size of the federal government—it’s real and likely to last. For sure they will put aside their differences in many cases, starting in all likelihood with the upcoming ruling in an Alabama county’s challenge to a key part of the Voting Rights Act. Still, the court’s right flank is divided, and that is producing some surprising and important legal victories for the Obama Administration.

Tom Donnelly is the Constitutional Accountability Center's counsel and message director.

Doug Kendall is president of the Constitutional Accountability Center, a think tank, law firm, and action center dedicated to the progressive promise of the Constitution's text and history.

TODAY IN SLATE

Foreigners

More Than Scottish Pride

Scotland’s referendum isn’t about nationalism. It’s about a system that failed, and a new generation looking to take a chance on itself. 

IOS 8 Comes Out Today. Do Not Put It on Your iPhone 4S.

Why Greenland’s “Dark Snow” Should Worry You

Three Talented Actresses in Three Terrible New Shows

The Human Need to Find Connections in Everything

It’s the source of creativity and delusions. It can harm us more than it helps us.

Jurisprudence

Happy Constitution Day!

Too bad it’s almost certainly unconstitutional.

The Ungodly Horror of Having a Bug Crawl Into Your Ear and Scratch Away at Your Eardrum

My Father Was James Brown. I Watched Him Beat My Mother. Then I Married Someone Like Him.

  News & Politics
Weigel
Sept. 17 2014 2:57 PM ISIS Helps Snuff Out Conservative Opposition to Government Funding Bill
  Business
Business Insider
Sept. 17 2014 1:36 PM Nate Silver Versus Princeton Professor: Who Has the Right Models?
  Life
Outward
Sept. 17 2014 1:59 PM Ask a Homo: Secret Ally Codes 
  Double X
The XX Factor
Sept. 17 2014 1:26 PM Hey CBS, Rihanna Is Exactly Who I Want to See on My TV Before NFL Games
  Slate Plus
Slate Fare
Sept. 17 2014 9:37 AM Is Slate Too Liberal?  A members-only open thread.
  Arts
Brow Beat
Sept. 17 2014 1:01 PM A Rare, Very Unusual Interview With Michael Jackson, Animated
  Technology
Future Tense
Sept. 17 2014 12:35 PM IOS 8 Comes Out Today. Do Not Put It on Your iPhone 4S.
  Health & Science
Bad Astronomy
Sept. 17 2014 11:18 AM A Bridge Across the Sky
  Sports
Sports Nut
Sept. 15 2014 9:05 PM Giving Up on Goodell How the NFL lost the trust of its most loyal reporters.