Today’s decision in Holmes brings up a question that I have been wondering about ever since Roberts and Alito were nominated: What kind(s) of conservatives are Alito and Roberts, and how different will they be from Scalia and Thomas? Here’s a bit of speculation. To be clear, I’m the first to admit that we don’t yet have the evidence to prove this argument is correct; that’s why I call it speculation, after all. But hopefully the speculation is at least food for thought.
My speculation is that Roberts and Alito will end up harkening back to an older kind of judicial conservatism — a conservatism more like Justice Harlan or Justice Frankfurter than Scalia or Bork. If you’ll allow me to paint with a very broad brush, Justices Scalia and Thomas have a radical element to their approach to constitutional law. They see the Court as having deviated from the true Constitution, and to varying degrees want the Court to return to first principles. You can see this when either Thomas or Scalia writes an opinion suggesting a significant change in Supreme Court doctrine, such as Scalia’s majority opinion in Crawford v. Washington or Thomas’s concurrence in United States v. Lopez. A careful reader senses a certain excitement, a freshness, in the tone of the opinion.
My guess is that Alito and Roberts will end up being quite different. My sense is that both Justices are basically at peace with the Warren Court. To be sure, they wouldn’t have joined the Warren Court’s more controversial opinions, and they may be willing to soften some hard edges of those opinions over time. And they’ll probably end up voting with Scalia and Thomas in a lot of cases.
At the same time, my guess is that Roberts and Alito are conservatives more in an institutional sense. If Scalia and Thomas are first-principles conservatives, Alito and Roberts are more second-principles conservatives. There’s more Bickel and less Bork; more of a focus on craft within the four corners of existing precedents and principles than a return to first principles.
That’s my speculation, at least. Your thoughts?