After 10 Years, Sam Alito Is The Most Important Conservative On The Supreme Court
Justice Alito is more coherent than Kennedy, more conventional than Thomas, more consistently conservative than Roberts, and a lot further from retirement or death than Scalia.
January 31, 2016 marked the ten-year anniversary of Samuel A. Alito, Jr. joining the Supreme Court of the United States.
One decade into his tenure, Justice Alito may well be the most important conservative currently sitting on the Court.
In short, Justice Alito is more coherent than Kennedy, more conventional than Thomas, more consistently conservative than Roberts. And he’s a lot further from retirement or death than Scalia.
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Alito v. Kennedy
Justice Kennedy’s swinging lifestyle has, indeed, caused him to be an extraordinarily influential Justice. Plainly, Kennedy casts the decisive vote in more cases than does Alito.
For all of Kennedy’s sway, though, he has strewn behind him a confusing record of willy-nilly decisions, leaving the rest of us to locate the elusive golden thread weaving them together.
What Justice Alito lacks in bloc-breaking voting power he makes up for in coherent judicial philosophy.
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For example, in U.S. v. Stevens in 2010, Alito was the only Justice who did not find the animal cruelty statute banning “crush videos” substantially overbroad and invalid under the First Amendment.
In 2011, another 8-1 majority held in Snyder v. Phelps that the distasteful funeral protests of the Westboro Baptist Church were protected by the First Amendment. Justice Alito was again the lone dissenter.
Alito’s decision in Snyder wasn’t a nail biter, like when Kennedy contemplates the proper role of race in schools, where his past writing still leaves everyone guessing where he’ll go next.
If you’re a judge, that’s a good thing.
Alito v. Thomas
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Both Sam Alito and Clarence Thomas are judicial treasures — fearless dissenters, stubborn adherents to interpretive principles, unabashed defenders of tradition, as well as surprisingly funny guys.
I really like CT. But, for good or ill, stare decisis does not keep Justice Thomas up at night, nor does he flinch at running as far afield from conventional approaches as he deems right.
Justice Alito hews a little closer to familiar ground.
For example, when SCOTUS decided Campbell-Ewald v. Gomez this month, both Alito and Thomas wrote opinions onto which none of their colleagues signed.
Justice Alito fully joined the Chief’s dissent, but wrote separately to emphasize a particular point. Justice Thomas agreed in the judgment of the majority, but wrote a concurrence explaining why he would reach that result only by relying on the Common Law history of tenders, something his colleagues don’t bother to seriously discuss.
Alito offers a tweak to a view shared by several other Justices. Thomas demonstrates an entirely different approach to judicial problem-solving.
The iconoclast in me loves Thomas’s f*ck-all attitude toward poor precedent.
The pragmatist in me knows that Alito retains his right-minded devotion to conservative legal principles while writing in a way that is more likely to gain support and, therefore, influence, now and in future.
There’s a reason why I named one of my beloved pet greyhounds ‘Clarence,’ but there’s also a reason why I’m naming Sam Alito as the most important conservative Justice.
Alito v. Roberts
Justice Samuel Alito
Comparisons between Justice Alito and Chief Justice John Roberts are inevitable. They’re the newest conservatives on the Court. They took their gigs within months of one another.
Ten years ago, John Roberts appeared primed to be the Court’s conservative leader for a new generation of jurists. George W. Bush counted on Sam Alito serving as a reliable conservative stalwart, but JGR was Bush’s top pick to lead.
Ten years later, the most I can say is that this was not the absolute worst miscalculation about judicial nominations ever made by a Bush.
Chief Justice Roberts, true to his stated aim to moderate the public perception of the Court as a purely political body, has gone soft on several major cases, including NFIB v. Sebelius, where Roberts cast — cannily, perhaps — the deciding vote to uphold Obamacare, and King v. Burwell where he kept right on holding.
Key decisions in recent terms have revealed Roberts to be as much a swing vote as Justice Anthony Kennedy.
Sam Alito, meanwhile, stepped up to the job of judicial heartthrob for the Right.
Although both men remain, to my knowledge, welcome at Federalist Society events, they have agreed with each other less in recent years than when they first took the Supreme Court bench.
in OT 2006, Alito’s first full Term, Roberts and Alito agreed with one another more frequently than any other pair of Justices. In 88% of cases they agreed in full, and in 94% of cases they agreed in full or in part.
By OT 2009, Roberts agreed in full more frequently with Kennedy than with Alito, what would become a persistent trend.
In OT 2013, the Chief and Alito agreed in full with one another in only 67% of cases. Compare that rate to Roberts’s 76% agreement with liberal Elena Kagan or his 75% rate with Stephen Breyer during the same Term.
Meanwhile, Justice Alito agreed in full with Justice Kagan only 59% of the time in OT ‘13, and with Justice Breyer 56%.
In OT ‘13, Roberts agreed in full or in part more with Anthony Kennedy than with any other Justice — in 88% of cases. Alito was most likely to agree in full or in part with Clarence Thomas — also in 88% of cases.
In OT 2014, the Chief and Alito agreed in full with one another in only 65% of cases. Roberts was more likely to agree in full or in part with Breyer than with Alito.
In Obergefell v. Hodges, last Term’s same sex marriage blockbuster, each of the four dissenting conservatives wrote separate opinions. Justices Scalia and Thomas joined the Roberts dissent, though Alito did not. Likewise, Scalia and Thomas joined the Alito dissent, though Roberts did not.
In his opinion, Roberts suggested that he would happily consider supporting same-sex marriage as a policy matter, if the question was presented through the legislative process.
Samuel Alito, on the other hand, gives the distinct impression that he wouldn’t be posting any pro-SSM signs in his yard if there were a ballot initiative. Alito rallies to defend social conservatives who, motivated by religious faith or devotion to tradition, find themselves sometimes out of sync with what the law supposedly requires.
Justice Alito represents a sort of deep conservatism that Chief Justice Roberts does not, measured either in their voting patterns or by their opinions’ rationales.
Alito v. Scalia
Liberal friends, let’s face it. If your quiet prayers and voodoo dolls were able to bring about Justice Antonin Scalia’s untimely demise, it would have happened a long time ago.
Still, Justice Scalia is currently about a month away from his 80th birthday and not getting any younger . . . which, if you think about it, makes him a lot less spooky than if he actually were getting younger, all Dorian Gray-style or something.
I would not be surprised if Justice Scalia’s will provides that his mortal remains should be stuffed and displayed in the Justice’s conference room, like philosopher Jeremy Bentham at University College London. Legend has it Bentham’s body still “attends” meetings, where he is recorded in the minutes as “present but not voting.” Maybe Scalia will similarly appear posthumously in Court opinions.
A sprightly 65 years old, Sam Alito still has many years — quite possibly a few decades — left to directly influence the Court. Even without human taxidermy.
May the good Lord (and SCOTUSblog) help us all to see what Samuel Alito does with his next decade on the Highest Court.
Happy anniversary, Justice. I know you’re just getting started.
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit and ran the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.
