The Obvious About Alito
By Adam Liptak has done an excellent job as the Times’ Supreme Court reporter, and while address some other aspects of his term-end roundup in a subsequent post I was especially gratified to see him note what few mainstream commentators are willing to about reasonable, moderate, thinking-man’s conservative Sam Alito:
The two newest justices, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush, agreed 92 percent of time, the highest rate for any pair of justices. But Justice Alito often wrote concurring opinions to underscore or try to extend conservative rulings, especially in criminal cases. He may well now be the court’s most conservative member.
“Alito is staking out some room to the right of the chief justice,” said Pamela Harris, the executive director of the Supreme Court Institute at Georgetown University Law Center, “and you would have thought there is no such room.”
[…]
If there were surprises, they came from Justices Antonin Scalia and Clarence Thomas.
“For all the talk about Scalia and Thomas being the most conservative justices on the court, they are the justices most likely in play,” said Jeffrey L. Fisher, a law professor at Stanford who has argued several important criminal cases before the court.
Obviously, as Liptak notes elsewhere, defining justices on an ideological spectrum can be tricky. The way I’d put it is that Alito is easily the most meaningfully reactionary justice on the current Court, and hence since James McReynolds. Thomas might be even more willing to stake out radical positions in solo dissents and concurrences, but given their lack of influence this doesn’t matter a lot. On the other hand, in some civil liberties and business cases Thomas and Scalia are in some cases willing to cast decisive votes in with the Court’s more liberal justices. Not in a million years would Alito cast the swing vote to uphold a confrontation clause claim, let alone write or join an opinion caustically noting the many logical flaws in the dissent’s argument in favor for ignoring the straightforward command of the Sixth Amendment if it might cause the state to spend money. It’s true that Scalia and Thomas’s commitment to civil libertarian positions is highly sporadic, but better “sporadic” than “non-existent if their vote means anything.”
And all of this was perfectly obvious at the time of Alito’s nomination. Claims that Alito was some kind of moderate were ludicrous at the time and have proven to be erroneous.