Alito, Thomas and Models of Judicial Behavior

The Supreme Court held today that the “automobile exception” to the warrant requirement did not apply to a warrantless search of a motorcycle being stored under a tarp on the suspect’s driveway. This was a fairly easy case, as reflected by the fact that Sotomayor’s majority opinion spoke for 8 members of the Court. You will be shocked to learn that the line dissenter was…Strip Search Sammy Alito. But he must be a moderate — he likes baseball and his opinions don’t read like Tucker Carlson monologues!

In addition, Thomas filed a concurring opinion in which he argued that the exclusionary rule should not apply to the states, which would have allowed the illegal obtained evidence in this case to be introduced at trial, and almost certainly left Collins without a remedy.

This contrast is an illustration of a point I’ve often made when teaching the attitudinal model in class. If you look at ideological scores political scientists assign to justices, Thomas will almost always show up as easily the most conservative justice:

But the question of how to evaluate Alito and Thomas is actually more complicated than scores based on individual votes would indicate. If you were to evaluate justices based on who is more likely to cast a material vote to produce a liberal outcome, for example, Alito would definitely rank as more conservative than Thomas, as the latter has sometimes joined 5-4 liberal holdings and the former never has. To some degree, what these scores measure is the product of aesthetic or temperamental inclination than ideology per se. Thomas tends to score as the most conservative in part because he likes to write solo dissents and concurrences staking out positions that don’t currently have five votes in the Court. That’s something Alito is much less inclined to do; he’s focused on getting the most conservative position with 5 votes. On the other hand, as in this case Alito is more likely make outlying votes and casts material votes for liberal outcomes “never” rather than “very, very rarely,” so he shows up as being further to the left of Roberts than he probably is. Scalia was more individualistic than Alito or Roberts, but more inclined to defer to long-established traditions he considers wrong than Thomas, so he unusually ranked in between.

You can see the same thing going back through history; late-career Douglas and Stevens rank easily as the most liberal members of the Court, but again a lot of this is just idiosyncrasy rather than ideology. Douglas wasn’t that much more liberal than Brennan and Marshall and Stevens wasn’t that much more liberal than Ruth Bader Ginsburg, they both just liked writing solo opinions more, so they have more opportunities to look like outliers in the models. But much of this is illusory. If Alito or Roberts or Scalia don’t join a Thomas concurrence or dissent staking out an extreme position that doesn’t currently have five votes, it doesn’t mean they don’t agree; it just means they don’t feel the need to take a position until there’s a chance to change the law. Neither way of doing things is better or worse, and indeed a ruling Supreme Court coalition probably benefits from having both temperments.  An in this case, if a Trumpified Court can get 4 other votes to hold that the exclusionary rule should not be incorporated against the states, I’m confident that Alito would be the fifth.