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Reader Feedback: Sherman Minton And, Yes, Sam Alito Is Very Conservative Edition

[ 21 ] May 14, 2010 |

A couple questions/retorts to the post below are worthy of response. First, from Erik:

What I find really interesting about this data is that every one of Truman’s selections to the court turned out pretty conservative. What was Truman thinking in making his selections?

To oversimplify only very slightly, Truman’s primary concern in his appointments was rewarding his cronies and poker buddies. The results of this basically anticipated Byron White — Cold War liberals at the dawn and entrenchment of McCarthyism, Truman’s appointees had hideously awful records on civil liberties. It must be said, though, that since Cold War imperatives compelled at least some measure of opposition to Southern apartheid, Truman’s appointees actually had a good record on civil rights, going along with a series of pathbreaking anti-segregation decisions. Indeed, to preview an issue I’m going to get to in a couple posts tomorrow, I’m persuaded by Mark Tushnet’s contrarian case that even had the much-maligned Fred Vinson not suddenly passed away, the Court (with Vinson in the majority) would have ruled school segregation unconstitutional.

David Nieporent, meanwhile, objects to my TAPPED post:

I do like your TAPPED post, where you argue that if we throw out most of the data that contradicts your beliefs, then your beliefs are strongly confirmed by the remaining data.

If you’ll click through, you’ll note first of all that this is flatly erroneous. The Althouse/Taylor position is that liberals were crazy to oppose Alito because he was much more moderate than Scalia. Even at face value, the data shows that Alito (and Roberts) are just as conservative as Scalia and only marginally less conservative than Thomas. So, in short, I was right and they were wrong, which isn’t very surprising given that their position never had any supporting evidence.

But as to my additional point — that if you look at meaningful votes Alito and Roberts would look much more conservative than Scalia — I certainly stand behind it. I’ve listed some examples in comments, but let me turn things over to Robert Gordon:

While Alito goes to conservative places Scalia won’t, the more telling point is that Scalia goes to liberal places Alito won’t. Scalia has a libertarian streak that can yield surprising results. In a 5-4 decision, Scalia found that the government could not, without a warrant, use a sophisticated thermal imaging device to figure out what you are doing in your home—whether growing marijuana or making whoopee. And Scalia dissented from a decision upholding mandatory drug testing for Customs employees, charging that it is a “kind of immolation of privacy and human dignity in symbolic opposition to drug use.” When his libertarianism combines with his (sometime) commitment to “original intent,” Scalia offers other surprises: Last year he wrote an eloquent opinion concluding that the president lacked power to detain enemy combatants. Only the court’s most liberal member, John Paul Stevens, joined that position; Stephen Breyer, another liberal, provided the key vote for a controlling view friendlier to the president. And unlike other conservative colleagues, Scalia has endorsed sharp limits on the power of judges to lengthen sentences for defendants, the power of prosecutors to use hearsay evidence, and the power of police officers to detain defendants before arraignment.

And since Alito joined the court we’ve seen further cases in which Scalia has cast a decisive vote for a liberal position (over Alito’s dissent, joined by Roberts) and in which Scalia and Thomas have cast liberal votes against conservative majority opinions joined by Alito and Roberts. Correct me if I’m wrong, but I believe there’s no example in a major case of Alito or Roberts either casting a decisive vote for a liberal opinion or dissenting from the left. So, in other words, the data actually understate the relative conservatism of Alito and Roberts. If you’re bringing a civil liberties lawsuit or trying to get a punitive damages judgment upheld, you might have a chance with Scalia or even Thomas — but the votes of Alito and Roberts will only be in play if you’ve already won. So, functionally, Roberts and Alito are the two most reactionary justices since James McReynolds.

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Comments (21)

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  1. Marc says:

    Scott – David isn’t saying what you’re responding to. You have a set of data, with whatever metrics were used to create it. And then you’re subjectively spinning how the data would be even more the way you think if some intangible factors were accounted for. Of course, it’s equally possible that the data would *go the other way.*

    The basic issue on the court is that there is a reactionary majority. If two justices from the reactionary side retire during Obama’s term then matters will change quite a bit – and perhaps the “conservative” justices will be the ones voting tactically with the liberal ones in an attempt to peel off the occasional liberal justice on other votes. It’s very difficult to prove, or disprove, such abstract arguments.

    • Scott Lemieux says:

      And then you’re subjectively spinning how the data would be even more the way you think if some intangible factors were accounted for. Of course, it’s equally possible that the data would *go the other way.*

      Well, that’s wrong, because I wasn’t ignoring or hiding the basic data, which confirmed my thesis. And, second, I have a well-supported argument for why the data does in fact conceal how conservative Alito is — one you have no response to. So you have no basis to claim that “it’s equally possible that the data would *go the other way.*” Why? What’s your theory? What’s your evidence?

      • David Nieporent says:

        My comment was precisely in response to your “throw out the non-meaningful [sic] votes” argument. Counting non-decisive votes does not “conceal” how conservative Alito is; it shows that he isn’t as conservative as you claim.

        As for your citation to Robert Gordon’s argument, he cites a handful of examples for Scalia over a 21-year period, and then contrasts that with the lack of examples over a 3 year period with Alito.

        • Scott Lemieux says:

          My comment was precisely in response to your “throw out the non-meaningful [sic] votes” argument. Counting non-decisive votes does not “conceal” how conservative Alito is; it shows that he isn’t as conservative as you claim.

          You’re still evading the issue. Even counting his meaningless votes, the data supports my position (that Alito is at least as conservative as Scalia).

          As for your citation to Robert Gordon’s argument, he cites a handful of examples for Scalia over a 21-year period, and then contrasts that with the lack of examples over a 3 year period with Alito.

          So, just to confirm, Alito is — given the data we have now — more meaningfully conservative than Scalia. Moreover, Gordon was making (what have so far proven to be wholly accurate) predictions based on Alito’s circuit court record, where he also showed himself as a down-the-line reactionary statist, without any trace of Scalia’s sporadic libertarian streak, so we have more than 3 years of data to work with. My point stands, and your response is as implausible and bereft of evidence as the Althouse/Taylor position that Alito is more like O’Connor than Scalia.

  2. Rarely Posts says:

    I tend to agree with your basic point, but I also think this discussion reveals some of the limits to discussing these decisions in terms of Liberal versus Conservative.

    Different liberals have different conceptions of liberalism. At the core of American Liberalism are often commitments to freedom, equality, and fairness, and a belief that realizing these values requires considering reality and real-world consequences (social, economic, and political power structures, etc.).

    In the context of the United States and our politics, some of those positions are clear-cut: (1) rights to abortion, personal bodily autonomy; (2) rights and protections for minorities, marginalized groups, etc.

    However, there are very legitimate disagreements about how best to pursue these values. Moreover, we might all have different visions about what constitutes “fairness”. Specifically, I am not at all certain that the judicial system we inherited from the 1800s best ensures fair outcomes to various litigants. By the very nature of sentencing and imposing damages case-by-case, there are significant risks of unfair and uneven outcomes among various cases. Scalia’s and Thomas’ commitment to the historical judicial scheme sometimes has “liberal” results in individual cases, but these rulings may not actually increase fairness over time.

    For two examples:

    1) I’m not at all sure that the recent sentencing cases, on balance, reflect a “liberal” outcome. Indeed, with time, I suspect we will find they have a significant “conservative” outcome. I also am not at all convinced that they are well-reasoned. Basically, from the right-to-a-jury-trial, Scalia and company seem to have reached the conclusion that: the constitutionally proper method to ensure that sentences reflect the different facts of different crimes is to give district court judges essentially unbounded and unrestricted discretion within an upper and lower sentence, or provide them with no discretion at all.

    The recent cases have been hailed as a huge benefit to criminal defendants, but they actually constitute a major judicial power grab with respect to Congress. Moreover, the sentencing guidelines were not perfect, but they reduced the arbitrary and unfair results from different judges imposing their different values through the sentencing process. The new rules arguably reduce the prosecutors’ power, but they place that power in the hands of a very conservative judiciary.

    In fairness, if I am remembering these cases correctly, Thomas may have taken a position requiring each fact to be proven to a Jury to be considered. In that case, he arguably was the most “liberal.” Scalia’s understanding of the jury trial right certainly seems more like a requirement that judges opperate as they historically did—essentially unreviewable gods. They don’t seem to have crafted real rights for the DEFENDANT.

    I know in the context of the specific cases, the “liberals” found for the criminal defendants. However, the consequence has probably been more variation in sentencing UPWARDS, not downwards. Moreover, many judges have always had difficulty viewing economic and environmental crimes as real crimes, and many have varied downwards in those contexts. My understanding is that the initial research suggests that these cases are hardly the “liberal” victory one might have hoped for in terms of outcome. Moreover, it is not at all clear that these rulings have reduced the arbitrary exercise of power or increased fairness in application.

    2. I tend to disagree with the vast majority of the Court’s punitive damage jurisprudence, and so I would tend to vote with Scalia and Thomas on almost every one of these cases. I’ll also concede that this is almost always viewed as the more Liberal position. Nonetheless, I’m not sure that a “liberal” has to commit to the view that the due process clause places no restrictions on the application of punitive damages to tortious conduct. Although it seems likely that any unfairness can be addressed by the legislatures and not the courts in the first instance, I don’t think we should celebrate Scalia’s and Thomas’ commitment to viewing the due process clause in cramped and narrow terms as “liberal.”

  3. DrDick says:

    So where are all the normal conservative howls about judicial activism in all this?

    • redrob says:

      Haven’t you been paying attention? Only liberal judges are “activist”. Conservative judges are by definition conservative; no matter what rulings they make, they can’t be activist because that’s not a conservative value. See how easy that is?

      Next lesson “War is Peace”.

  4. Erik Loomis says:

    All very interesting.

    To follow-up, do you then reject the idea that Truman was one of our strongest presidents, an idea that historians and the general public have generally agreed with over the last 2 decades. I have no strong opinion on Truman’s presidency, as the early Cold War is not exactly my specialty, except to say that the hatred Truman received for “losing China” after 1949 was pretty short-sighted.

  5. Josh G. says:

    In my opinion, Truman is the third most overrated president of the 20th century (after Ronald Reagan and Woodrow Wilson). He wasn’t an especially terrible president as those two were (Wilson, in particular, was one of the most evil men of the 20th century, and probably the wickedest American of that time period), but his postmortem lionization by Blue Dogs and conservatives has been used to cause all sort of mischief. Indeed, he serves the same purpose as a historical figure that Wilson does: an excuse for warmongering.

    • Scott Lemieux says:

      I’m sympathetic to this. I can say for him that he was pretty good on labor and civil rights issues for a president of his time, and I’d have to consider JFK even more overrated. But — and I’m not an expert on his presidency either — I certainly wouldn’t rank him among the greatest. He strikes me as a poor man’s LBJ.

      • Erik Loomis says:

        I did read somewhere recently that the runner-up for the VP spot in 1944 was William O. Douglas. That would have been an interesting presidency.

      • Josh G. says:

        I’m inclined to agree with you on all the above. I had, for the moment, completely forgotten about JFK – and he definitely deserves to be mentioned on the list of most overrated. It’s very difficult for those of us who never lived through that time to see the greatness in JFK that his contemporaries apparently did. I think Matt Yglesias put it best (http://yglesias.thinkprogress.org/archives/2009/03/the_kids_love_lincoln.php):

        “Now of course if you could take the Kennedy-Johnson years as a whole, then divide them up into one presidency that was dominated by Vietnam and another one that’s responsible for Civil Rights and the Great Society, then you’d have one shitty president and one great president. A lot of people seem to have basically decided to divide things up this way and call the shitty president ‘Johnson’ while the good president is called ‘Kennedy.’ That, however, doesn’t have a great deal to do with reality.”

        I agree that Truman was good on labor issues (he at least tried to stop Taft-Hartley, though he was unsuccessful) and did a decent job on civil rights, especially with desegregating the armed forces.

        I should also clarify one of my earlier statements: what makes Wilson and Truman so pernicious as historical icons (as opposed to actual people) is that they are so often used as an excuse for warmongering that is ostensibly carried out in the service of liberal ideals. Iraq was the most recent example of this, but far from the only one; virtually every post-WWII intervention has used Wilsonian/Trumanian justifications. We’re not engaging in colonialism, we’re protecting their freedom! Sure we are.

      • Ed says:

        I’m sympathetic to this. I can say for him that he was pretty good on labor and civil rights issues for a president of his time,

        And Truman was a fighter, something not true of JFK, alas. Wilson has gone from being somewhat overrated to routine demonization, a strange development despite his flaws. But Presidents go in and out of style – only Lincoln and FDR, both victorious war presidents, seem genuinely immune to changes in fashion.

  6. McKingford says:

    I’ve said this before, but it is worth repeating. I came online in 1993, and my initiation to the internet was essentially reading rec.sport.baseball with trn. A lot has changed since 1993: trn has disappeared the same way Netscape has; rec.sport.baseball has been overrun by memorabilia dealers and viagra pitches; and Pets.com has come and gone.

    But one thing has remained constant: David Nieporent is still a jackass.

  7. It’s not reasonable to try to reduce the essence and nuance of an entire person’s politics into a single-dimension measurement, and it’s extra unreasonable to try to do this with someone like a Supreme Court justice. Making graphs like the one posted previously might be a good pedagogical tool for someone, but there’s little to be gained by arguing about its merits. Someone already said what I think; the precise measurement that you get with exercises like these depends highly upon on the very subjective determinations of of those performing the exercise, and thus they are not precise at all in any meaningful sense. We can only say that Alito and Scalia are generally conservative and Marshall and Douglas are generally liberal and the rest fall somewhere between them, but only usually and these measurements are not predictive or, for some, even descriptive.

    • pdf23ds says:

      Umm… of course they’re predictive. Otherwise they’d be meaningless in the context of jurisprudence. They’re just not determinative. They’re like, maybe, 60-80% predictive.

  8. […] has been a long-standing hobbyhorse of mine. But (much of the ludicrously incompetent journalism surrounding his nomination notwithstanding) if […]

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