Is Justice Scalia inconsistent in his principles? Professor Bainbridge asserts (though he does not attempt to demonstrate) that his jurisprudence is incoherent. I argued a few years ago that Scalia’s view that racial preferences are unconstitutional is hard to square with his originalism.

Somehow, however, I’m never quite convinced by my friend William Saletan’s attempts to catch Scalia in inconsistencies. (See here for an example of my not being convinced.) Saletan thinks that he has spotted three more inconsistencies in Scalia’s dissent from the Oregon assisted-suicide decision.

For example, Scalia thought that the states should be able to decide their own abortion policies, but doesn’t think Oregon should be able to decide its own assisted-suicide policy. But the parallels don’t line up. To get a comparable abortion case, you’d have to imagine a restrictive national policy coupled with a state that wanted out of the federal regime. Then the question would be whether Scalia would give it one. To put it another way: To say, as Scalia does, that the Court should refrain from imposing a national policy on the states is different from saying that the Court should stop Congress from imposing a national policy on the states. It could be that the Constitution does not warrant the Court either to impose a national policy or to stop Congress from imposing one. (The precise question here was whether Congress had imposed a national policy in the relevant area, but that’s not important for seeing the weakness of Saletan’s argument.)

I think Saletan’s other two alleged inconsistencies also melt away on examination.