ALITO: STILL WORSE THAN SCALIA. David Savage has a very good article in today's Los Angeles Times about Antonin Scalia and the effect of appointing Sam Alito. It carefully explains the areas of law where replacing the centrist Sandra Day O'Connor with the doctrinaire reactionary Alito is likely to have an immediate impact. One good thing about it is that, rather than taking Scalia's claims of "originalism" and "textualism" at face value, it brings up the obvious anomalies in his record (such as the claim -- farcical from an originalist perspective -- that the 5th Amendment's Due Process clause prohibits the federal government from using any racial classifications.)

Having said this, however, the fact that Scalia's (and, to a slightly lesser extent, Clarence Thomas's) commitment to grand legal theories can be sporadic doesn't mean that it's irrelevant. This is evident in a case handed down today. The Court, in a 5-4 ruling with an unusual coalition (Breyer and Souter being joined by Kennedy and the two Bush appointees, while Scalia and Thomas joined Ruth Bader Ginsburg's primary dissent), vacated a punitive damages award against Phillip Morris, arguing that the state court violated the corporation's due process rights by basing punishment in part on harm done to parties not before the court. Although the decision did not directly address the question of whether punitive damage awards can be "excessive" under the 14th Amendment, as Thomas noted in dissent, "[i]t matters not that the Court styles today�s holding as �procedural� because the �procedural� rule is simply a confusing implementation of the substantive due process regime this Court has created for punitive damages."

The split among the Court's right wing here is therefore very instructive. During the Alito nomination, some court watchers argued that because Alito was a "minimalist" who abjured the broad theoretical claims of Thomas and Scalia, liberals shouldn't worry much about his appointment. As today's case demonstrates, this gets things exactly backwards. Scalia and Thomas, at least when there's no conflict with strongly held policy preferences, will have their ideological conservatism constrained by legal policy goals which don't always produce conservative results. Alito and Roberts, conversely, are free to be much more slavishly pro-business -- marrying O'Connor-style unprincipled "minimalism" to a much more conservative ideology is the most dangerous combination of all. If you're a left-liberal, you'd much rather have Scalia or Thomas than Alito.

--Scott Lemieux

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