In attempting to suggest that Justice Scalia takes inconsistent position in two cases, all Will Saletan over at Slate manages to do is show that he has some difficulty with basic reading comprehension.
Scalia is in dissent (brilliant, as usual) over the Supreme Court's decision in Roper v. Simmons, which held that Mr. Simmons, who committed a particularly brutal and premeditated murder, could not be executed because he was under 18 when the crime was committed. (He was 17 and 5 months, but who's counting?)
Scalia chides the Court for creating a categorical rule that 17 year olds are all insufficiently mature to comprehend the gravity of murder where, when abortion was the issue, the Court found that some minors were perfectly capable of making mature decisions about important events:
In other contexts where individualized consideration is provided, we have recognized that at least some minors will be mature enough to make difficult decisions that involve moral considerations. For instance, we have struck down abortion statutes that do not allow minors deemed mature by courts to bypass parental notification provisions.
Saletan calls Scalia a flip-flopper because, in the Hodgsen v. Minnesota case, involving pre-abortion parental notification, Scalia agreed that a state legislature could create a categorical rule that persons under 18 were too immature to make the decision whether to have an abortion.
What Saletan doesn't get--first--is that the Court is not (or shouldn't be, anyway) trying to decide these matters in the first instance. Rather, the Court's task is just whether these laws pass Constitutional muster. So Justice Scalia could certainly decide that the Constitution permitted one state legislature to require 17 year olds to get parental permission before getting an abortion, and also that the same Constitution permitted a different state legislature to refuse to set a categorical rule prohibiting execution of 17 year olds.
More significantly, of course, Scalia's opinion in Hodgsen is very short, very clear, and never even pretends to take a position whether 17 year olds are mature enough to decide abortion issues. Rather, Scalia argues that, given the lack of anything in the Constitution about abortion, the Court had no business striking down state laws based on the individual opinions of its justices as to teenager maturity:
As I understand the various opinions today: One Justice holds that two-parent notification is unconstitutional (at least in the present circumstances) without judicial bypass, but constitutional with bypass, ante, at (O'Connor, J., concurring in part and concurring in judgment); four Justices would hold that two-parent notification is constitutional with or without bypass, post, at (Kennedy, J., concurring in judgment in part and dissenting in part); four Justices would hold that two-parent notification is unconstitutional with or without bypass, though the four apply two different standards, ante, at (opinion of Stevens, J.), ante, at (Marshall, J., concurring in part and dissenting in part); six Justices hold that one-parent notification with bypass is constitutional, though for two different sets of reasons, Ohio v. Akron Center for Reproductive Health, ante, p.; ante, at (Stevens, J., concurring in judgment); and three Justices would hold that one-parent notification with bypass is unconstitutional, ante, at (Blackmun, J., dissenting). One will search in vain the document we are supposed to be construing for text that provides the basis for the argument over these distinctions; and will find in our society's tradition regarding abortion no hint that the distinctions are constitutionally relevant, much less any indication how a constitutional argument about them ought to be resolved. The random and unpredictable results of our consequently unchanneled individual views make it increasingly evident, Term after Term, that the tools for this job are not to be found in the lawyer's and hence not in the judge's workbox. I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so.
That was Scalia's entire opinion. Saletan either didn't read it, or else he is more interested in playing word games than he is in the truth.