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It’s the Votes

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Preparing links for a new Alito link dump, I notice that this excellent New Republic cover story is behind the subscription wall, and I wanted to get some excerpts online. It’s particularly relevant given this awful Newsweek article, co-written by the hacktacular Stuart Taylor, which argues that Alito is a moderate–but bases this mostly on his personality and tone, which are irrelevant to the question of ideology. The two cases they discuss to make the case in any detail are used to burn down strawmen rather than evaluate them for evidence. Yes, of course, his Casey dissent was not a lawless application of precedent, but it is surely relevant that he (unlike the other two judges on the panel) interpreted an ambiguous precedent in the most conservative way possible (and, needless to say, they ignore the crucial facial challenge issue entirely.) Even worse, they note his willingess to strike down a “partial birth abortion” statute without noting that he filed a concurrence, which many have (correctly) interpreted as sending a signal that he was reluctantly applying a precedent he disliked. And, yes, his Rybar dissent doesn’t mean he was “fronting for the gun lobby,” but it does demonstrate that he will be a strong supporter of the “new federalism,” which unlike Taylor and Thomas’ conclusion is actually relevant to something.

Andrew Seigel, on the other hand, is actually engaged in serious analysis, focusing on votes rather than who’s a friendlier fellow, and draws the right conclusions:

The implication of this conclusion was that liberals should breathe a sigh of relief, since Alito is no Scalia 2.0. The reality, however, is much more complicated. While Scalia’s bellicose tone and general lack of civility have long been fodder for his left-wing critics, they have also served to hold back his judicial agenda, both by alienating potential allies within the Court and by marking his ideas as extreme in the court of public opinion. But Alito, who marries Scalia’s conservative jurisprudence with tact, politeness, and a deferential writing style, is infinitely more dangerous to liberals. In Alito, they may have met their worst nightmare.

In 15 years on the bench, Alito has had opportunities to weigh in on almost all of the controversial constitutional issues facing the Supreme Court today–from abortion and the death penalty to the scope of federal power and the role of religion in the public square. The opinions that he has written in these cases share two essential characteristics. First, each is calm, rational, and well-written. Second, on virtually every significant issue where his conclusion is not mandated by direct Supreme Court precedent, the result is conservative.

[…]

Two lessons can be drawn from the substance and tone of Alito’s appellate opinions. First, contrary to what many commentators want you to believe, the individual predilections and judgments of jurists have a substantial effect on the direction of U.S. constitutional law. While many legal questions can be resolved through a relatively straightforward application of reason to the relevant legal texts, most of the controversial constitutional questions that reach the Court are not susceptible to such simple resolution. When confronting such cases, judges are forced back–almost inexorably–to their own, often inchoate, ideas about human behavior, social policy, and the judicial role. For most Supreme Court nominees, we need to guess how these “priors” will shape their jurisprudence, but, for Alito, we have a long and consistent answer: He will tack hard to the right.

The second lesson is really a caveat about the first. With the opinions of most justices–particularly the savvy–it’s hard for a reader to separate the application of legal sources and precedents from individual will. The norms of the legal profession push judges to ground their opinions directly in the legal sources, whatever the wellspring of their decisions. Those who are accomplished at this task have the ability to make even the most controversial result sound inevitable. In a substantial percentage of their cases, Scalia and Luttig eschew these professional conventions and lay bare their motivation. Alito never does. In many ways, the scrupulous fidelity of Alito’s opinions makes him a more powerful advocate for his conclusions and a bigger danger to those who sport opposing legal or constitutional visions.

This is exactly right. Thomas and Taylor, like Althouse, provide literally no evidence–nothing–that Alito’s votes will be more liberal than those of Scalia. (You couldn’t have produced a more conservative outcome than he did in Casey, and Rybar went further than Scalia has been willing to go so far. And, of course, they also skip Groody, which suggests that on search and seizure Alito is likely to be if anything more reactionary than Scalia.) The fact that Alito is less acerbic and more careful than Scalia makes him worse, not better, if you disagree with him philosophically.

Again, evaluating circuit court opinions is inherently uncertain, relying on probabilistic judgments, and we can’t be sure how Alito would vote. But his tendency to push the law in a conservative direction suggests the very strong possibility he’ll be as conservative as anyone on the Court, and whether he’s a nice guy has absolutely nothing to do with how he’ll vote. Thomas and Taylor’s tripe will be the administration line–don’t buy it.

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