The Worst Justices Since McReynolds

I have a new Prospect article up on how Roberts and Alito aren’t as bad as Scalia and Thomas…they’re worse.

To make one more point about the remarkable Stuart Taylor article I discuss, consider his assertion that Alito will be able to “keep his political preferences out of his legal rulings.” Let’s leave aside the fact that pretty much by definition cases that reach the Supreme Court give justices a large amount of discretion, which means that there’s no way to keep one’s political preferences out of politically salient cases. What’s especially striking is that other than invoking the meaningless buzzword “judicial restraint,” Taylor doesn’t actually tell us what Alito’s interpretative theories are. However sporadic they are in applying them, I can identify the legal values that for Scalia and Thomas will sometimes clash with their immediate political values. But what grand theory does Alito use? I’m quite confident that Taylor still couldn’t tell you, because of course there’s no trace of any overarching interpretive theory in Alito’s jurisprudence.

I also have a little more on “sovereign immunity” and conservative jurisprudence, with a big tip of the hat to Anderson for the Kyl joke.