Is Roberts/Alito Optimism Justified?

Publius has a more optimistic take on last week’s civil rights enforcement decisions, in which (unusually in a major case) Alito and Roberts broke with Thomas and Scalia and (with Kennedy) joined the Court’s more liberal bloc, than I did. His case is, as always, worth reading.

However, I note a recent case that contained a split that I would still predict as being more likely. Earlier in the week, Thomas and Scalia joined with the three more liberal members of the Court to throw out a money laundering conviction, while Alito and Roberts joined with Kennedy and (the relatively statist) Breyer to uphold it. The case involved a classic use of prosecutors using money laundering statutes to apply more draconian sentences as part of the largely futile Wars on Gambling and (Some Classes of People Who Use Some) Drugs than are otherwise called for. In this case, the feds argued that the ordinary activities of an illegal gambling ring — paying runners and customers — also constituted money laundering. The case turned on whether the word “proceeds” in the statute should be read to mean “receipts” or “profits.” As Justice Scalia persuasively concludes, however, given the ambiguity of the statute and lack of federal precedent the state’s position “turns the rule of lenity upside-down. We interpret ambiguous criminal statutes in favor of defendants, not prosecutors.” This case provides another example of a civil libertarian streak in Scalia and Thomas than seems almost entirely non-existent in Bush’s two new appointments. And I also note that in this case Scalia and Thomas actually cast decisive votes, whereas in last week’s cases Alito and Roberts just made a 5-4 decision 7-2.

The rest of Publius’s argument probably merits a separate response. The short version of my reply would be here. It’s true that Roberts and Alito are more formally “minimalist” and less likely to explicitly overturn precedents than Thomas and Scalia. But this only matters if there’s some substantive difference in how they actually apply these precedents, and don’t see any evidence of this. What difference does it make if Carhart isn’t explicitly overturned if in applying the case the Court votes to uphold a virtually identical statute? If anything, the Roberts/Alito approach is worse, not only for progressive constitutionalism but for democracy.