THE ALITO COURT. Emily Bazelon has an amusing article asking liberal and moderate legal scholars who claimed that Roberts would not preside over a rightward shift on the Court on the basis of... well, frankly I have no idea, if they have second thoughts. (Of course he said he valued stability and precedent at his confirmation hearings. Everybody does. Including Clarence Thomas.) But while claims that Roberts "might even move the Court to the left" were frankly bizarre, as were the stories that took the possibility of lots of unanimous decisions in high-profile cases seriously, it's important not to attribute too much causal weight to the new Chief Justice per se. Roberts is essentially a dead match for Chief Justice (as opposed to Associate Justice) Rehnquist -- a standard-issue conservative with little interest in grand legal theory and a tendency to disingenuously gut precedents rather than explicitly overruling them (although Roberts has taken the latter tendency to ridiculous lengths.) In other words, what really facilitated the Court's rightward shift was replacing the moderate conservative O'Connor with the doctrinaire conservative Alito. If O'Connor had stayed on, the Roberts Court would look exactly like the end of the Rehnquist Court, and several major cases (including Carhart II, Ledbetter, and yesterday's desegregation decision) would almost certainly have come out the other way. Given a minimum (i.e. more than Burger) level of competence, the impact of the Chief Justice on the modern Court just isn't very great. --Scott Lemieux
