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Balkin on the Court's Conservatives:
Commenting on today's Supreme Court decisions, Jack Balkin writes:
George W. Bush promised to appoint Justices in the mold of Thomas and Scalia. But Roberts and Alito have not been willing to go as far as Thomas and Scalia in these cases. That may be because they are new on the Court and not yet ready to overrule cases left and right (mostly to the right). Or it may be because they are genuinely "conservative" in the sense of preferring slow and steady incrementalism to the large changes in doctrine that Scalia and Thomas prefer. In any case, Roberts and Alito do not seem to be "in the mold" of Scalia and Thomas, although, to be sure, they seem to be just as conservative, and perhaps that is what Bush really meant.
  I think it's clearly right that Roberts and Alito are cut from a very different cloth than Scalia and Thomas. Here's what I predicted a year ago, which I think has looked pretty accurate so far:
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.
  As for what Bush meant when he promised to appoint Justices in the mold of Scalia and Thomas, my recollection is that he never actually made that promise. Bush did say he would nominate "strict constructionists," and he said that he liked Justice Scalia a lot and seems to like Thomas, too. But my recollection is that he never actually promised to nominate someone "in their mold," whatever that would mean.
PatHMV (mail) (www):
That conclusion clearly flows from today's decision in Wisconsin Right to Life. I'm very disappointed in that decision. I agree the Court should not lightly reverse close decisions in relatively immediate response to changed membership on the Court, but I see the campaign finance reform stuff, particularly section 203(a) of McCain-Feingold, which the Court upheld from facial challenge in McConnell as being a quite direct infringement on our freedom of speech and our freedom to peaceably assemble and petition the government for redress of grievances.

There's a good place for Chief Justice Roberts' "second-principle conservatism," but failing to uphold the clear prohibition imposed on Congress by the very first amendment to the Constitution is not one of them. Moreover, from a pragmatic standpoint, we'll now all be filled with anxious waiting and twittering until a new case comes up from below, a political ad which would only be permissible if section 203(a) is facially unconstitutional. Only then will we know whether we can say that in an election without being fined by the FEC. Not only would overturning McConnell been the right thing to do, it would have been the judicially economic thing to do.
6.25.2007 5:52pm
Antares79:
Minimalism is an admirable judicial trait, but
not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future. The rule of law is ill served by forcing lawyers and judges to make arguments that deaden the soul of the law, which is logic and reason.

--Scalia, J.
6.25.2007 6:19pm
Just a Nut (mail):
Another difference-- Scalia and Thomas tend to be lazy in their analysis. The new conservatives will become lazy soon under their guidence.
6.25.2007 7:00pm
OrinKerr:
Just a nut,

What does that mean? Do you mean lazy in the Justice Dougas sense of writing quickly and sloppily without research? Or in some other sense?
6.25.2007 7:02pm
AF:
Roberts and Alito may be "second-principle" or "institutional" conservatives, but they are, first and foremost, political conservatives. To Scalia's annoyance, their minimalist approach leads them to draw talmudic doctrinal distinctions and refuse to explicitly overrule precedents (Hein, WTRL, etc.). But not coincidentally, the results are (almost?) always pleasing to political conservatives (read Republicans).

To point out this obvious fact is not to impugn Roberts's and Alito's integrity -- similar points could be made about the liberal justices. But to speak of their jurisprudence in purely institutional terms is to miss a big part of what it's about.
6.25.2007 7:19pm
OrinKerr:
AF,

I don't understand. Aren't Scalia and Thomas's views even more pleasing to political conservatives? That is, if you're a political conservative and you want to use the courts to reach the most conservative result, wouldn't you want to immediately overrule McConnell and Flast just as Scalia and Thomas want?
6.25.2007 7:30pm
AF:
Orin--

Sure -- I'm not saying that Alito and Robert are more conservative than Scalia and Thomas. My point is that in focusing on their gradualist or minimalist approach, we should not lose sight of the fact that there is a direction to their gradualism, and that direction is rightward. It even appears at times that they deliberately lay the doctrinal groundwork for future changes in the law, which as a result appear to be (and to some extent, are) consistent with precedent. An example of this is Roberts's use of WRTL I in today's WRTL II opinion to suggest that because as-applied challenges to McCain-Feingold are cognizable (WRTL I), they must be broadly upheld (WTRL II).

It's clear to me that underlying -- and in some cases shining through -- their careful doctrinal analysis is a belief in conservative political principles. Do you disagree?
6.25.2007 7:50pm
Jim Rhoads (mail):
As a law student over forty years ago, I thought Frankfurter and Harlan were both superb craftsmen and imbued with a profound respect for the differences between the appropriate respective functions of state and federal government and the proper interrelationship among the judicial, executive and legislative branches of the federal government. This view was not popular among my Ivy League classmates or professors.

Nothing has happened in the intervening years to change my opinion about those Justices. I happen still to believe that their approach to S. Ct. Jurisprudence is correct.

Hence, I do not think the Roberts/Alito approach is a problem. Nor do I think these men will become lazy. That is also something that never happened to either Frankfurter or Harlan, whose opinions were well written and well reasoned until they left the Court.
6.25.2007 7:51pm
SimonD (www):
Orin wrote:
Just a nut, What does that mean? Do you mean lazy in the Justice Dougas sense of writing quickly and sloppily without research? Or in some other sense?
One suspects s/he means "lazy" in the sense that if Scalia &Thomas just thought about these issues that little bit more, if they worked that much harder to grapple with the issues, they'd see that "Just a nut"'s view of the case is correct.
6.25.2007 7:57pm
Thorley Winston (mail) (www):
As for what Bush meant when he promised to appoint Justices in the mold of Scalia and Thomas, my recollection is that he never actually made that promise. Bush did say he would nominate "strict constructionists," and he said that he liked Justice Scalia a lot and seems to like Thomas, too. But my recollection is that he never actually promised to nominate someone "in their mold," whatever that would mean.


Your recollection is correct. The "in the mold of Scalia and Thomas" was a line from then Vice President Gore and not a promise by then Governor Bush. I'm a little surprised that Professor Balkin is so sloppy with his recollection of the facts.
6.25.2007 8:08pm
wooga:
AF Said:
It's clear to me that underlying -- and in some cases shining through -- their careful doctrinal analysis is a belief in conservative political principles. Do you disagree?
That describes my view of the late CJ Rehnquist. Basically, I accuse Rehnquist of "ruling from the gut," and trying to rationalize his "conservative" decision. Essentially, an "ends" before "means" approach. In contrast, I see Scalia and Thomas as putting their particular jurisprudence above all else, unpalatable results be damned. Essentially, a "means ARE the ends" approach.
6.25.2007 8:42pm
whackjobbbb:
And if more judges followed that simple technical approach, we'd be a lot better off.
6.25.2007 8:50pm
OrinKerr:
AF,

I think it's too early to apply that kind of political narrative; Alito and Roberts have only been around for a short period. If you're right, though, your theory would seem to be that Alito & Roberts are on the right what Ginsburg or Breyer are on the left. Ginsburg & Breyer routinely and consistently nudge the law to the left, usually in small steps. Not in every case, of course, but in many, and enough to chart a pretty consistent course. I suppose you would say that Ginsburg and Breyer are foremost political liberals? By your theory, it would seem that 8 of the 9 justices are foremost political actors, with Kennedy being the exception in that his votes are sometimes on one side and sometimes on the other.
6.25.2007 9:13pm
ReaderY:
If the Supreme Court were to have no respect for precedent at all -- if every time a justice changed things were overturned willy-nilly and every 5-4 decision became a 5-4 the other way -- then the Court would be, even more than it now is, a purely political branch with no institutional check on its power. Moreover, repeated shocks to the law would be bad for the country and demoralizing to the concept of the rule of law. The Court would be unable to fulfill its institutional role in a pinch where its institutional respect is really needed.

Roberts' moderate course may not please ideologues, and doesn't please me when I really wish he'd go farther on a given issue, but in the long run is good for the court.

Moreover, have you considered the possibility that if Roberts and Alito behaved like Scalia and Thomas, Kennedy would be so distanced from them that he'd inevitably start finding himself in common with the Court's liberals? By behaving just barely to the right of Kennedy, Roberts and Alito have the ability to retain dialogue with Kennedy that might ultimately prove more persuasive. Which does a conservative prefer, a lot of 5-4 moderately conservative decisions, or a lot of 5-4 liberal decisions with strongly conservative dissents?
6.25.2007 9:16pm
PatHMV (mail) (www):
And if he had needed Kennedy's vote to obtain this result in this particular case, I'd agree with ReaderY. But he didn't here. He's practiced that position in a whole lot of other cases. Roberts could have easily gone with the good guys on this one. The First Amendment is important enough to justify it this time.
6.25.2007 11:00pm
Scipio_79:
I agree with Y. Right now the 4 "conservatives" are vying for Kennedy's vote which Roberts knows can only be gained with honey, not vinegar. If a republican wins in 08 and appoints another "conservative" or two to replace kennedy, ginsberg, and/or stevens, well, watch the warren court's precedent's fall like dominoes.
6.25.2007 11:02pm
PatHMV (mail) (www):
But the dissent says this is an overruling of McConnell, despite Roberts' claim that it isn't. So we have the worst of all worlds. The dissent believes he's overruled it without saying so (as do Scalia, Thomas, and Kennedy). He's paid the internal cost of overruling McConnell without actually doing so, to the detriment of the goal of actual clarity in the law.

And once again, would somebody please explain to me how THIS vote gains other Kennedy votes in other cases? Kennedy was with Scalia and Thomas on this one. If they're trying to woo him, why not vote WITH him on this case?
6.26.2007 12:14am
AF:
By your theory, it would seem that 8 of the 9 justices are foremost political actors, with Kennedy being the exception in that his votes are sometimes on one side and sometimes on the other.

Yes, as I mentioned above, a similar analysis would apply to the liberal justices, though they don't make the same claims that Roberts does about being neutral "umpires." That was my point: not that Roberts and Alito are more political (i.e., motivated by a substantive vision of what the law should be) than other justices, but that despite claims to the contrary, they are no less political.

Thus, I disagree with your attribution to Roberts and Alito of a "second-principle" judicial conservatism a la Justices Harlan and Frankfurter and Professor Bickel. I read this to mean that, in your view, their jurisprudence is primarily concerned with judicial restraint -- deciding cases based on "neutral principles" (in Bickel's phrase) and leaving the political decisions to the political branches. I don't see any reason to believe this is their primary concern. Rather, though they certainly "focus on craft within the four corners of existing precedents," they do so in the service of substantive ends, much as an effective appellate advocate might do.

In general, I question your conflation of focusing on precedent ("lawyerliness") and judicial restraint. Lawyerliness is a style, which has some substantive implications -- change comes slowly -- but ultimately must serve a substantive vision of the law. Judicial restraint, on the other hand, is a substantive jurisprudential philosophy that calls for minimal judicial interference with the decisions of the political branches. Lawyerly opinions need not be restrained, and restrained opinions need not be lawyerly.
6.26.2007 12:07pm
Dilan Esper (mail) (www):
Let me defend Just a Nut's claim that Scalia and Thomas are lazy.

Obviously, they are not lazy in the sense that they don't work hard. To the contrary, they work very hard, and their historical approach to constitutional law (at least when they use it, which isn't always) is very difficult to do well. Indeed, I think one of the more interesting arguments against it is simply that it is impossible for District Courts to apply, with their time constraints and caseloads.

But I think Scalia and Thomas can be quite lazy in another sense, in thinking that their neat little theories provide the right answer to very complex and vexing constitutional questions.

Despite what Scalia and Thomas sometimes say, for instance, there is a reason why judges come to different conclusions about what the equal protection clause means in affirmative action cases. It's because there are good arguments going in different directions. It's because "equal protection of the laws" is a very general concept, and courts must read these words and apply them to many situations not considered by the words' authors and enactors, and against the backdrop of 140 years of precedents that may have, over the years, more or less faithfully interpreted those words, and the reliance that those precedents have engendered.

Scalia and Thomas would like to just say, "look, it's easy, we're right and the rest of you are wrong". I don't know if "laziness" is exactly the right term for this dynamic, but it is real and it is, in a sense, their glaring fault.
6.26.2007 5:55pm
whackjobbbb:

Scalia and Thomas would like to just say, "look, it's easy, we're right and the rest of you are wrong". I don't know if "laziness" is exactly the right term for this dynamic, but it is real and it is, in a sense, their glaring fault.


Well, it's more than just them, Esper. If ALL of the black-robed fascists recognized this tendency... one many posess in spades... and chose rather to adhere to a connected process... rather than continually inventing and expanding the reach of the law... legislating... stretching it hither and yon... we'd all be a lot better off... and inferior courts wouldn't have to wade through the morass these judicial legislators have created... and real legislators (and principals) might actually have incentive and ability to do the jobs that they are accountable for.
6.26.2007 8:58pm
Dilan Esper (mail) (www):
whack:

I don't understand your point. Constitutional law is complicated. Provisions are vague, history is centuries old, original intent is murky, policy arguments go both ways.

As far as I can tell, ALL NINE JUSTICES on the Supreme Court are trying to get the cases right. They are not fascists-- even Clarence Thomas, the farthest away from my ideology, does his job for the most part in good faith and tries to get the cases right. So does John Paul Stevens, the farthest on the left.

The laziness I was talking about was a tendency to deny that the answers are hard, that reasonable people can disagree, that it's possible to be very smart and believe that original intent and history and tradition don't lead to the right answer.

As far as I can tell, only Scalia and Thomas really suffer from this. Roberts and Alito, for instance, do not. They don't sneer at the others on the Court, they don't lace their opinions with vitriol, they don't accuse other Justices of bad faith or crappy reasoning.

I really don't see how your post is an attempt to answer this point.
6.26.2007 10:54pm
whackjobbbb:
There's no "answer" to your point, as your point isn't a question.

There is the observation that the black-robed fascists... most of them... do as a matter of course what you observe in only your subset. The rest is just details, and which of their actions you prefer, and which you don't. You clearly approve of their process, however.
6.27.2007 1:21am