His case is the kind that should keep people of good conscience awake at night. Both morally and legally, it illustrates many of the most troubling flaws in our system of state-sanctioned killing: the risk of executing the innocent, the inadequate legal representation often provided to poor criminal defendants charged with the most serious offenses, the inconsistencies of the appeal process, and the cruelty of all forms of capital punishment.
Of course, Justice Scalia is correct that failure to understand any such contemporaneous meanings of these terms would lead a modern reader to misinterpret what Queen Anne may have said. However, on its face, this example does not apply to the interpretation and application of an ongoing legal rule.
The Roberts dissent offers a unique view on how the justices do their best to maintain a fallacious distinction between judicial overreach and neutral interpretation of laws that already exist. In other words, it's best to enter the reasoning of the so-called "conservative" justices and deconstruct their arguments from within.