Let's take Justice Sutherland first. Like millions of other conservatives, he hated what the New Deal stood for and did what he could to stop it. But he was not a hard-edged warrior. For example, it was Justice Sutherland, in 1932, who wrote the opinion in Powell v. Alabama, a decision that stills stands for the proposition that a criminal defendant cannot get a fair trial without assistance of counsel. It was Powell the Court cited in 1963 in Gideon v. Wainwright, the right to counsel case that has helped millions of Americans in the past 50 years get something resembling a fair shake in court.

Moreover, there is strong evidence that Justice Sutherland as an elected official before he reached the Court was remarkably progressive. From "The Secret Lives of the Four Horsemen," a 2011 law review article by Barry Cushman:

We discover that Sutherland's legislative career saw him support the eight-hour day, the Employers' Liability Act, the Pure Food and Drugs Act, the Hepburn Rate Bill, the Children's Bureau, the Seaman's Act of 1915, Postal Savings Banks, free coinage of silver, and the1896 presidential candidacy of the populist William Jennings Bryan. We even find Sutherland in the vanguard of the struggle for women's suffrage and a system of workmen's compensation for the employees of interstate carriers.

Now, Justice Scalia never held elected office so we will never know whether he would have supported progressive causes like these as a legislator. My guess, which is as good as your guess, is that he would not. We can, each of us, make this guess because we have a quarter of a century of Court opinions to sift through, as well as Justice Scalia's record as a lower appellate judge and executive branch official, all of which tell us that the jurisprudence of Justice Scalia has rarely favored women, or workers, or laws like the Affordable Care Act that seek to help the poor.

Indeed, Justice Scalia has been largely responsible for one conservative victory after another since joining the Court in 1986. He has helped restrict voting rights. He has restricted the rights of workers and employees and unions. He has limited the ability of plaintiffs to seek redress in court. He has helped make it more difficult for criminal defendants to seek and gain justice. He has opened the floodgates for money to pour into political campaigns. He has endorsed grand executive branch power.

On and on the litany of conservative achievement goes--with no end in sight. So does the justice truly believe that "his side" is losing or that, within the next 50 years, it will lose the constitutional battles it now is winning? Does he truly believe that the advance of gay rights--arguably the most significant setback he has seen since coming to the Court--trumps all the other areas of the law in which conservatism is ascendant? Was he merely being self-deprecating in citing Sutherland? Does he feel the need for future vindication even though the present sure looks to be treating him right?