Jeffrey Rosen continues to claim that liberals “dodged a bullet” when Roberts and Alito were appointed. I continue to find this as unpersuasive as it was a year ago. Some of what he mentions — such as the rhetoric in dissenting opinions becoming less acerbic — is completely irrelevant to the impact of the Court. The central problem with the more important arguments can be found here:
In particular, Roberts has been more willing than his predecessor to assign plurality (rather than majority) opinions. In these cases, Roberts begins with the three center-right conservatives (himself, Anthony Kennedy, and Samuel Alito) and tries to attract liberal justices to a narrowly reasoned decision, while letting the hard-line conservatives (Thomas and Antonin Scalia) write separate, more extreme concurrences.
To put Alito and Roberts on the “center right” with Kennedy rather than just on the “right” with Scalia and Thomas is, of course, just transparently erroneous. Kennedy is a legitimate moderate; on two of the three cases the term will be remembered for he cast decisive votes with the Court’s four more liberal members, and he has done this in many landmark cases. Rosen can’t cite any example of Alito and Roberts doing the same thing, for the obvious reason that there isn’t any example of this happening in a major case. Moreover, there are examples of Scalia and Thomas casting decisive votes with a more liberal majority. (Roberts and Alito did make 5-4 majorities 7-2 on a couple occasions, but so what?) Roberts and Alito are simply doctrinaire conservatives, not Kennedy-style moderates.
The key here is that Rosen mistakes some disagreements about how to characterize precedents and about what the rule will mean going forward as substantive disagreements. But most of these distinctions are without any substantive difference. (On this term’s Voter ID case, for example, the theoretical possibility of a future successful lawsuit is worth pretty much nothing, since the standards the case set for assessing the ban would make it almost impossible for the suit to succeed. Any any Court that would plausibly find a similar law unconstitutional could just overturn or distinguish a superficially less favorable precedent anyway.) The formal differences between Bush’s appointments and the Court’s two other conservatives are vastly less consequential than their overwhelming substantive agreement.
To exaggerate these differences, Rosen relies on a strawman:
Instead of siding with conservative extremists like Clarence Thomas, who are eager to press the limits of the so-called Constitution in Exile, resurrecting limits on federal power whenever possible, Roberts prefers narrow opinions that can attract support from the center. Liberals ought to applaud this instinct because, even if Barack Obama gets to appoint the next justice or two, it’s the only thing standing between them and a Court eager to roll back progressive reforms.
Fears of a “Constitution in Exile” reappearing are vastly, vastly overblown. Rosen is greatly underestimating the political constraints on the Court; an attempt to seriously challenge the New Deal regulatory state is highly unlikely, and if they tried it wouldn’t endure because it would work out about as well for the Republican Party as it did in 1935. The Court certainly could challenge a unified Democratic government on some marginal issues — but nothing in their records suggests that Alito and Roberts wouldn’t vote with Thomas and Scalia in such cases. More importantly, there’s no necessary connection between a justice’s “minimalism” and how far they’re willing to take the “new federalism”: Rehnquist and the arch-minimalist Sandra Day O’Connor showed considerably more enthusiasm for the project than the maximalist Scalia. We should remember as well Alito’s words from Rybar: “Was United States v. Lopez, a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power?” How Rosen can conclude that Alito is less likely to find limits on federal power than a justice who concurred in Raich is beyond me.
Liberals dodged nothing: Alito and Roberts were home runs for judicial conservatives, and nothing in the first terms of the Roberts Court suggests otherwise.