Posts Tagged ‘congruence and proportionality’

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.



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