The opening of Justice Scalia’s opinion concurring in the judgment today in Coleman v. Court of Appeals of Maryland:
The plurality’s opinion seems to me a faithful application of our “congruence and proportionality” jurisprudence. So does the opinion of the dissent. That is because the varying outcomes we have arrived at under the “congruence and proportionality” test make no sense. Which in turn is because that flabby test is “a standing invitation to judicial arbitrariness and policy-driven decisionmaking,” Tennessee v. Lane, 541 U. S. 509, 557–558 (2004) (SCALIA, J., dissenting). Moreover, in the process of applying (or seeming to apply) the test, we must scour the legislative record in search of evidence that supports the congressional action. See ante, at 6–11; post, at 16–20 (opinion of GINSBURG, J.). This grading of Congress’s homework is a task we are ill suited to perform and ill advised to undertake.
