Thank goodness you are a humble political science professor willing to consider judges as political agents. How long has this metric been undiscovered by traditional straw-person caricatures of law professors who are concerned only with the “correctness” of decisions!!

One way of attacking this hypothesis is to attack the link between height of pros and the average American. But a second way to attack the hypothesis is to dispute that the statistics about the pro players were properly done.

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When you use the term “cherry-picking” you are making the second kind of criticism. It carries certain burdens. Given that you are wandering back and forth across this distinction, I am skeptical that you are prepared to acknowledge, let alone meet, these burdens. I am not even sure what conclusion about Alito you think SHOULD be reached from this data. Do you think he is misranked relative to Thomas or something?

The data says what Scott says it does. He is not cherry-picking; the trend he is weighting does clearly exist in the larger data. Alito is the most extreme when considering all the data. Scott’s metric is applied faithfully to all the justices. Claims to the otherwise require… you know… numbers.

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By all means feel free to have the first kind of debate with Scott, about whether pro-business is immoderate or whatever. But leave the statistics part out of it. Or step up.

“Accusation” is the wrong word, both because I don’t think there’s anything normatively wrong with strategic voting, and because until the papers are released (or someone leaks conference votes to Bob Woodward) we simply don’t know. It wouldn’t surprise me if Alito switched votes after conference in, say, Reading — but obviously we don’t know. All I’m saying is that the possibility should be considered.

Well, that in itself is a puzzling argument; being “pro-business” isn’t moderate?

In this context, where it means “supporting the business interest where the law is ambiguous the vast majority of the time,” yes.

Is being “moderate” kind of like being David Broder, to you?

In this context, essentially yes; I don’t think this is terribly controversial. I note that this doesn’t mean that being moderate is
better; obviously, if you’re a conservative voting like Alito is desirable!

you throw out those cases entirely in your assessment.

Nobody’s throwing out anything. There are multiple ways of looking at the data, that’s all. If I were bringing a lawsuit, it would be worth knowing that the Thomas and Scalia are more likely to be swing votes. That’s not the only way of measuring a judge’s ideological valence, but it’s worth knowing. Whether you call this “heterodoxy” or “moderation” — who cares? I think the argument is clear.

What’s odd about your defensiveness, of course, is that by both measures Alito shows up as the most conservative member of the Court, rendering your “cherry-picking” charge transparently bogus.

Alito’s vote is only in play in the easier Court cases — that is to say, the cases in which precedent, statutory text, etc. give the most guidance. When the legal materials give guidance that leans heavily in favor of an anti-CoC result, then Alito may indeed vote for the anti-CoC result. (Some of the ERISA cases the court sees are like this. Alito’s actually pretty good on ERISA.)

But where, as in most cases, the legal materials give little guidance — where, as the legal realists say, the case is radically indeterminate — Alito’s vote is simply not in play. He will go for the pro-CoC result because he can — that is to say, he can do so without losing legal face.

If one wants to argue that Alito is not moderate because he votes more pro-business than other justices, fine. (Though I wince at the identities pro-CoC = pro-business = conservative = not moderate.) Then we can debate how often one needs to vote, er, anti-business to be moderate. But to “prove” Alito’s lack of moderation by dating he never does something, exploiting the shock value of the word “never,” and then getting to that factoid by tossing out most of his votes is not legitimate.

And I simply reject the notion, as explained in my comments above, that what Scott is measuring is “moderation” at all.