Yes, Scalia and Thomas can disagree -- but when's the last time Scalia voted with the entire liberal judge bloc against Thomas, Rhenquist and O'Connor?
I'm sure FReepers can remind me of a time, but I sure can't remember it.
Who was with Scalia in the wine shipping case? I know the conservatives were split on that one I think.
I'm pretty sure in the flag burning case, he was with the libs. Scalia has always had a weird version of a libertarian streak but also alot of stare desis in him too.
I can think of one case from 1990 - Maryland v. Craig in which the SCOTUS held that:
"The Confrontation Clause does not guarantee criminal defendants an absolute right to a face-to-face meeting with the witnesses against them at trial."
The majority was formed O'Connor (who wrote the opinion) and Rehnquist, White, Blackmun and Kennedy. Scalia wrote the dissent, which was joined by Brennan, Marshall and Stevens. Famously he wrote:
"The Court has convincingly proved that the Maryland procedure serves a valid interest, and gives the defendant virtually everything the Confrontation Clause guarantees (everything, that is, except confrontation). I am persuaded, therefore, that the Maryland procedure is virtually constitutional. Since it is not, however, actually constitutional, I would affirm the judgment of the Maryland Court of Appeals reversing the judgment of conviction.".
You simply can't help but smile when you read this :-).
Also see:
COUNTY OF RIVERSIDE v. McLAUGHLIN, 500 U.S. 44 (1991)
I don't remember this case very well but it had sth to do with failing to provide "prompt" judicial determinations of probable cause to persons who were arrested without a warrant. Anyway O'Connor wrote the majority opinion which was joined by Rehnquist, White, Kennedy and Souter. Marshall, Blackmun, Stevens and Scalia dissented. Scalia beautifully wrote:
"The story is told of the elderly judge who, looking back over a long career, observes with satisfaction that, "when I was young, I probably let stand some convictions that should have been overturned, and when I was old I probably set aside some that should have stood; so overall, justice was [500 U.S. 44, 60] done. "I sometimes think that is an appropriate analog to this Court's constitutional jurisprudence, which alternately creates rights that the Constitution does not contain and denies rights that it does. Compare Roe v. Wade, 410 U.S. 113 (1973) (right to abortion does exist) with Maryland v. Craig, 497 U.S. 836 (1990) (right to be confronted with witnesses, U.S. Const., Amdt. 6, does not). Thinking that neither the one course nor the other is correct, nor the two combined, I dissent from today's decision, which eliminates a very old right indeed."