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.