The Chamber of Commerce Court
Very useful data here. Again, I’ll have more about this when I get home, but it’s worth noting that once again that Roberts and Alito, not Scalia and Thomas, are the most reliable pro-business votes. The latter two have some broader theoretical commitments that, while obviously broadly congenial to reactionary politics, do not always point towards outcomes favored by contemporary conservative Republicans. The alleged “minimalism” of Roberts and Alito, conversely, does nothing to constrain them from favoring their preferred interest or policy outcome in any case. And note as well that Alito (unlike Scalia) never casts a potential swing vote in these cases that doesn’t favor business interests, which is consistent with what I recently speculated.
I will repeat again, the conservative bloc on this court are the most politically activist justices at least in my lifetime (and I go back to the Truman administration) and possibly ever.
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I really can’t tell whether it’s dumb or disingenuous to throw out 70% of the data and then claim that Alito never does something.
Well, if you have some cites of cases where Alito has cast a liberal swing vote, by all means let’s hear them! As far as I can tell, the total number cited by the “Alito is a moderate” crowd remains “zero.”
The point is that this is, well, an incredibly stupid metric. Why is failing to cast a “liberal swing vote” the sign of lack of moderation? It’s a cherry-picked non-stat created by throwing out most of the data.
Now, if he’s the sole ‘conservative’ vote, or one of two — that is, if he’s on the losing side of a bunch of 8-1 or 7-2 decisions — then that might show lack of moderation. But 5-4 votes, almost by their nature, don’t show anything at all.
If the question is, “Will Alito ever vote against the Chamber of Commerce?”, then the answer, as defined by this study, is yes. So why isn’t that “moderation”?
(That’s setting aside the even more bizarre notion that voting for the ‘chamber of commerce’ is a sign of lack of ‘moderation.’)
It must, admittedly, be nice to be a political science professor rather than a lawyer or law professor, so one doesn’t have to worry about piddling little concerns such as whether a court decision is correct or not before one comments on it.
Well, in fairness, I think a lot of law professors would also recognize that at the Supreme Court level identifying decisions as “correct” (in the “law requires only this outcome” sense you seem to imply) is silly — I recommend Posner’s recent HLR Foreword. Cases get to the Supreme Court pretty much by definition because reasonable people can disagree about what the law requires. And this goes triple for the politically salient 5-4 cases in which Alito invariably casts conservative votes.
Scott, you forget that, in Nieporent’s infallible opinion, the conservative outcome is always the correct one.
I’m a lawyer and a law professor. And I say Scott is correct.
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