Jeff Rosen makes some good points in his piece about the divisions within the Supreme Court’s conservative bloc. But I think he misses an important one: the way in which the George W. Bush-appointed “minimalists” are substantially worse on civil liberties issues than Scalia and Thomas. Precisely because they have (an admittedly sporadic) interest in broader legal theories, on issues of less central importance to them Scalia and Thomas have a libertarian streak that Roberts and especially Alito never have.
An excellent example was visible last week in another confrontation clause case. Bullcoming v. New Mexico applies the principles established two years ago in Melendez-Diaz. The latter case established the principle that the Sixth Amendment experts who submit evidence on behalf of the state are required to testify in court if called upon by the defense, and the former found that simply sending an analyst who wasn’t involved in the testing is insufficient. On the merits, I think both cases are correct — it’s unclear how a constitutional right “to be confronted with the witnesses against him” doesn’t include people who produce forensic evidence for the state, and complaints that it will prove too costly are 1)as Scalia says in Melendez, probably overstated and 2)prove too much, since the enforcement of all rights costs money. Scalia, in particular, has always been good on these issues, while Alito and Roberts have been standard-issue Republicans.
For our purposes, what’s interesting about these cases is the lineup: Scalia and Thomas were in the majority with Ginsburg and either Souter/Stevens or Obama’s appointees, while the W. Bush appointees were (of course) in dissent along with Kennedy and Breyer, the most statist Democratic appointee. In addition to providing further evidence that Alito and Roberts are the very worst justices on the Court from a progressive standpoint, they’re also examples of how Kennedy’s alleged “libertarianism” is overstated somewhat by Rosen; it’s very erratic in criminal procedure cases.