The Supreme Court yesterday, in 6-3 and 7-2 decisions, interpreted anti-discrimination statutes to include retaliation against employees as "discrimination" even when this was not explicit in the statutory text. The latter case, Crocs West, was a relatively easy case upholding long-standing precedent and the unanimous holdings of circuit courts. Roberts differed in the first case because of the availability of administrative procedures for government (as opposed to private) employees.
Dana and Josh Patashnik point out that Alito and (in one case) Roberts split from Thomas and Scalia in a more liberal direction. In isolation, this could be used as a data point supporting claims that Alito and Roberts are more moderate and unpredictable than Scalia and Thomas, as the more minimalist and less theoretical approach of the newer justices led to voting with the more liberal justices. However, for now I'm certainly sticking with my assumption that Alito is a doctrinaire conservative and the formal differences among the court's conservative will have little substantive impact.
Justices never have entirely consistent voting patterns -- even famously similar justice pairs such as Brennan/Marshall and Black/Douglas didnt't vote together 100% of the time -- but one exception is hardly cause for revision. This is particularly true because the votes of Roberts and Alito in this case weren't decisive -- if Alito and/or Roberts start breaking from Scalia and Thomas when it actually matters then there may be cause for revision. Scalia has actually cast decisive votes with more liberal justices and dissented in arguably more liberal directions that the majority; when Alito starts doing that I'll entertain claims that he's less predictably conservative. Until then, let's remember that last term "the Chief Justice voted for the more conservative result (by most observers' lights) in 24 out of the 24 cases decided by a 5-4 vote," and I believe in every one of these was joined by Alito.
--Scott Lemieux
