In praising Samuel Alito, Ilya Somin is a bit unfair to Antonin Scalia. Scalia takes a pretty expansive view of First Amendment protections, after all; he was in the majority in the flag-burning cases (which I mentioned here). Scalia has said of one of the flag-burners, “I would have been delighted to throw Mr. Johnson in jail. Unfortunately, as I understand the First Amendment, I couldn’t do it.” And Raich notwithstanding, Scalia’s been pretty good on federalism; while I’d like to believe that Alito would, like Thomas, be even better, I’m not sure that Rybar, by itself, tells us that.
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