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.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.
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.