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?
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Reasonable speculation. Though I’m not sure it’s about being a different type. I suspect that they simply are not as conservative as Scalia and Thomas. Perhaps they are a bit more “judicially minded” as well, which is in tune with your point.
I think it’s too early to say, although I personally hope you’re right. If we’re just thinking about age as evidence (Roberts and Alito, unlike Scalia, grew up in a post-Brown world), then that might provide a reason to think they’ve made peace with the Warren Court. But Thomas is basically the same generation as Alito and Roberts, yet he probably adheres to first principles even more than Scalia. Also, Roberts, Thomas, and Alito have in common the fact that they all got their start in the same place – the Reagan administration.
Today’s Holmes v. South Carolina certainly suggests as much. I read the opinion with great interest because, until recently, I taught the basic evidence law class; I was intrigued to see whether the Court would apply the Chambers v. Mississippi approach to due process constraints on evidence law, or strive to cut it back. Holmes is unanimous, so it’s not as if Justice Alito’s opinion can show great distance from Justices Scalia and Thomas. At the same time, Chambers – an early Burger Court effort, not a Warren Court effort – has not been deployed all that often. And I chuckled to see, when checking back on Chambers today, that then-Justice Rehnquist had actually dissented in the case (albeit it on jurisdictional grounds, concluding that Chambers had not preserved the question for review on habeas). Perhaps Justice Alito will be, on the whole, more technocratic and Harlanian or Frankfurterian. And did anyone else think, while reading Holmes, “this would have looked exactly the same if Justice Ginsburg had written it”?
In that sense the new court may very well turn out to be the “Rehnquist” court. Rehnquist, though overshadowed by the more “doctrinally pure” Scalia and Thomas, served to remind us all that originalism, for better or for worse, did not always have a monopoly on “conservative jurisprudence.” Perhaps Roberts and Alito will bring back into conservative dialogue names like Bickel, Jackson, Friendly, and Rehnquist. It certainly would be an interesting debate. Surely conservative jurisprudence would be the better for it, even if, in the end, textualism reigns supreme.
My sense is that while Scalia and Thomas are originalists, Roberts and Alito are conservatives whose chief concern is efficient government administration, and are thus unlikely to ever vote for criminal defendants in any case where a fair argument can be made in favor of the government. I think my assessment of Roberts is born out by Roberts’ comments in oral arguments in the right to choose one’scouncil case recently heard in the Supreme Court. He was willing to disregard the likely original meaning of the right to council, which almost certainly, (as Scalia intimated), included the right to choose one’s own council as a basic matter, on the grounds that one who can’t afford council is not able to excercise that right, and the right is thus not “fundamental”. Alito’s long track record in the 3rd circuit, which fails to show any originalist dissent in favor of criminal defendants, speaks for itself.
[OK Comments: Let me go on the record as being even more radical than Roberts, Jacob: My view is that the U.S. Constitution contains absolutely no right to council.]
I suspect that they simply are not as conservative as Scalia and Thomas.
Here is my confusion…. What does it mean to say Justices Alito and Roberts are “not as conservative as Scalia and Thomas”? Within the judicial context, what does it mean to say Thomas and Scalia are “conservative”? I honestly don’t know, though I would love to hear your answer.
I think what Orin is doing, in Aristotlean fashin, is saything there are two types of conservatism. Does you disagree with his dichotomy?
I think his dichotomy makes sense. I am a “radical” libertarian, but if I were a judge, I would be a judicial conservative.
That is, I would recognize that I know very little about how the world works, and would recognize that there is more than one way to view a constitutional provision. Thus, I would not enact my radical views on the world. Or, at least if I did, I would take a lot of time.
A judicial conservative is to judges what a Burkean conservative is a legislators. If you’re in a car, take-your-time, and don’t make any sharp turns.
In other words, anyone – liberal or conservative – can be a judicial conservative.
If you disagree with this, I’d love to hear it. This is much more fascinating a discussion than using divining rods to determine what some clause in the Constitution means.
I think it’s way too early to tell what kind of “conservatives” the Bush two will turn out to be. As is tradition, Alito’s first opinion was for a unanimous court, so even if he wanted to be revolutionary in his style, he couldn’t be and avoid concurring opinions. I expect Alito to be closer to Thomas and Scalia than Roberts will ever be. That does NOT mean I think he’ll be a “Scalito” anymore than Thomas can be thought of as a Scalia-follower. (Thomas and Scalia, while voting together most of the time, often disagree on critical constitutional issues. ) I personally hope Alito joins forces with Thomas to bring a true originalist perspective to the Court. I think it’s certainly possible with Alito. Roberts is too much of an institutionalist to be revolutionary I’m afraid.
[OK Comments: What's the evidence that Justice Alito might be a "true originalist"? He was a circuit judge for 15 years, and I don't recall his writing a notable originalist opinion either for a panel or for himself. I think Judge Garth addressed this issue in Alito's nomination hearings: "Make no mistake, he is no revolutionary."]
OK Comments: Let me go on the record as being even more radical than Roberts, Jacob: My view is that the U.S. Constitution contains absolutely no right to council.
I don’t know, Orin. There is a clause in the Constitution guaranteeing the right to a republican form of government. So wouldn’t that imply a right to council?
I don’t think any of them can be or are true originalists. I think the question, more properly stated is not who is more conservative (because “liberal” judges who wish to preserve precedent from the Warren court are “conservative” in the sense they don’t want change), but rather the degree to which judges are guided by more or less coherent political views as opposed to a view that allows the maximum room for majoritarian politics to work. Jackson, for example, was not a “conservative” in any sense I understand. But he had a certain amount of judicial modesty, believing that in most areas, the making of policy should be left to the legislative and executive branches of government and only rarely should the courts step in.
The debates on judicial philosophy today too often assume judicial supremacy and a sort of imperial judiciary. For Scalia, Thomas, Ginsberg, Stevens, Kennedy and Breyer, the issue is on what side of the political issues of the day does the court come down, giving its official imprimatur to one side or the other. We can hope that Roberts and Alito are true judicial conservatives — people who believe that the role of courts in a representative democracy is limited — with most of the policy-making done by other branches of government.
Now, now, let’s not make fun of commenters’ spelling. Why not fix the commenters’ spelling? That would make it seem like all your commenters are extremely bright and wise (which of course we are … some of us just type too fast). Anyway, the President surely has a constitutional right to a council in the form of the U.S. Senate.
Regarding Justice Alito, he spoke during his hearing about the law having an objective meaning — that it doesn’t necessarily mean what we’d like it to mean. Likewise, in his speech at the Reagan Library, Roberts stressed that the primary consideration for judges is the law’s “intent.”
We’ll see.
I think it’s great that the blogs have finally started to move on from the “Are We Changing History or Are We Merely Awesome” symposium and have gotten back to posting substance.
As for the substance of this post, I think it’s still too early to tell. Certainly, Alito has a long track record consistent with Prof. Kerr’s assessment of him, but I will be really interested to see how the last opinions of the term look, particularly those in the reargued cases.
My gut tells me that Roberts and Alito will be as judicially conservative as Scalia, but they will throw less bombs along the way (a more subtle form of originalism, if you will–i.e., one that appeals to precedent that is originalist in nature).
My guess is that Roberts and Alito will chip away at questionable precedent (e.g., Roe) until it is virtually meaningless. They won’t do it as fast as I would like, but I understand the instittuional reasons for jettisoning bad precedent in an incremental fashion. I don’t like it, but I understand the reasoning behind it.
I also think it is important to emphasize that both Roberts and Alito will most certainly be on board the textualism train when it comes to statutory construction (see, e.g., Alexander v. Sandoval), and that it is highly unlikely that we will ever return to the wild and carefree days of Cort v. Ash. And thank the Lord for that.
Finally, we call all rest assured that neither man will pull any “mystery of life” crap out of their hindquarters. These gents are not revolutionaries. Roberts and Alito believe in judicial restraint, and I think that has and will continue to come across in their opinions.
Anyway, that’s my take fwiw.
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Whoops! I mistyped “institutional”
Let the mocking commence!
Perhaps they are followers of Larry Solum’s neoformalist manifesto, which argues, inter alia, that “Judges in constitutional cases should follow an adequate and articulated doctrine of stare decisis . . . even courts of last resort . . . should regard their own decisions as binding, unless there is a compelling reason to do otherwise.”
“They won’t do it as fast as I would like, but I understand the institutional reasons for jettisoning bad precedent in an incremental fashion.”
The Court may slice the baby differently. Liberals have been in denial for years that Roe legalized abortion throughout the second trimester, and the Court may decide to deny it too. But that would be extremely disappointing, given that there are much more compelling lines than the judicially-concocted line between trimesters (e.g. the line at two months from conception that divides an embryo from a fetus). Instead of slicing the baby differently, it might make more sense to implement the prior restraint doctrine in the abortion context, as decribed here.
Clinging to bad precedents is itself a precedent that incentivizes more judicial overreaching. Somehow, the Court has got to stop clinging to Roe v. Wade. The Court’s legitimacy is at its apex when the public believes that the justices are truly doing what the Constitution requires, instead of covering for the mistakes of their predecessors. What did Springsteen say? “I took a wrong turn and I just kept going.”
Oops, bad link. I meant here.
Simon~
I agree that they may be following something along those lines. However, the last part begs the question “what would be a compelling reason?” and then the judge/ justice is right back where they started.
Mightn’t it be the case that those who hope that Alito and Roberts aren’t originalists in the Scalia mould are confusing temperament with philosphy?
That is to say, they point to the obvious fact that Alito and Roberts don’t share Scalia’s temperament, and assume that they don’t as a result share his judicial philosophy.
But temperament and philosphy cannot really be called two sides of the same coin.
[OK Comments: Alykhan, what's the evidence for your claim? Notably, no one has discussed Scalia's temperament, and Thomas does not share Scalia's temperament. So I don't know why you think this is a temperament question.]