Justice Scalia called Kennedy's approach "faux deference." He added: "What the Court apparently means is that the political branches can debate, after which the Third Branch will decide."
The Washington gun rights case produced a version of the same debate among the justices. But this time it was Scalia defending the importance of upholding a fundamental liberty. "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad," Scalia wrote in the majority opinion in District of Columbia v. Heller.
"The Constitution leaves the District of Columbia a variety of tools...," he added. "But the enshrinement of constitutional rights necessarily takes certain policy choices off the table."
The court's liberal wing responded with Scalia-like calls for judicial deference. "I cannot understand how one can take from the elected branches of government the right to decide whether to insist upon a handgun-free urban populace in a city now facing a serious crime problem," Justice Stephen Breyer wrote in his dissent.
The high court's blockbuster decisions could prove important in the upcoming presidential election. In addition to highlighting differences between John McCain and Barack Obama, they are a reminder that the next president will likely shape the future direction of the court.