Roberts and Alito Speak Softly but Carry a Big Gavel

On Tuesday, the Supreme Court ruled 6 to 2 that a lawsuit against Virginia officials who violated federal law by failing to cooperate with an investigation by the Virginia Office for Protection and Advocacy into deaths at the state's mental-health facilities could proceed. The case, VOPA v. Stewart [PDF], is minor in its scope, but given that the Bush-appointed conservative justices, John Roberts and Samuel Alito, split from the conservative wing in a passionate dissent, it serves as a telling example of the sharp differences between the old and new guard.

You may wonder, first of all, why there would be any question about whether a state official could be sued for violating federal law. The answer lies in the federalist revolution of the 1990s. Returning to a largely ignored, century-old precedent, in a series of 5-to-4 decisions, the Rehnquist Court held that under the doctrine of "sovereign immunity," a state could not be sued without its own consent. In particular, the Court held that states could not be sued by their citizens for violating the Americans With Disabilities Act and the Fair Labor Standards Act.

There has, however, been a long-standing exception to sovereign immunity. In the 1908 case Ex parte Young, the Court held that state officials were not immune from suits when they acted in violation of federal law. The question in Tuesday's case was whether Young applied when a state official or agency was being sued by another state agency. To a majority of the Court -- including Justices Antonin Scalia and Clarence Thomas -- this was not a terribly difficult question. As Justice Scalia wrote in his opinion for the Court, "There is no warrant in our cases for making the validity of an Ex parte Young action turn on the identity of the plaintiff." In other words, the majority persuasively argued that if the Constitution does not immunize state officials who violate federal law, whether they are being sued by a citizen or a state agency, as in the VOPA case, is irrelevant. But Justices Alito and Roberts disagreed.

The conventional wisdom surrounding George W. Bush's nominees was that they would be more moderate than the existing conservatives on the Court. A number of progressive law professors praised Roberts' moderation during the confirmation process. And while most liberal legal scholars knew that Alito was very reactionary, some moderate pundits were fooled. During Alito's confirmation, the University of Wisconsin's Ann Althouse instructed liberals to "give serious study to [Alito's] record," with the implication that they would find it more acceptable than Scalia's. The National Journal's Stuart Taylor argued that Alito "will be an exceptional justice" and "will probably be to the left of Antonin Scalia, albeit with less of a libertarian streak."

But Taylor's argument is self-refuting: Scalia without a "libertarian streak" is just a more conservative Scalia. In fact, Scalia has cast important votes -- some in dissent and some as swing votes in 5-to-4 majorities in favor of civil liberties. He has even been willing to go against the cherished policies of Republican presidents, arguing that the Bush administration's denial of habeas corpus rights to American citizens was unconstitutional. And since Roberts and Alito have joined the Court, Scalia has split from the conservatives to join the Court's liberals in cases involving the right to counsel and confirmation clauses of the Sixth Amendment. Scalia is not, of course, a liberal on civil-liberties issues. But he looks like the liberal William Brennan compared to Alito, who, as Slate editor and Yale Law School fellow Emily Bazelon recently noted, has the most reactionary record on civil liberties of any justice since the ones appointed by Presidents Woodrow Wilson and William Taft left the Court.

Another way of comparing Scalia and Thomas with Alito and Roberts is to examine what happens when conservative legal principles clash with business interests favored by Republicans. A classic example is the recent line of cases arguing that the due-process clause of the 14th Amendment limits the punitive damages juries can award plaintiffs in lawsuits involving businesses. In the 2007 case, Phillip Morris v. Williams, Scalia and Thomas dissented from a majority opinion finding that the 14th Amendment limits the punitive damages juries can award. Their dissent was consistent with conservatives' dislike of granting what they see as novel "substantive due process" rights -- even when the defendant was a corporation. But Roberts and Alito sided with business over conservative legal principles. The Phillip Morris ruling is hardly an anomaly. In cases decided by a single vote, Alito and Roberts have proved to be significantly more likely than Scalia and Thomas to side with business interests.

Another way of putting it is that while Scalia and Thomas are conservative ideologues, Roberts and Alito are Republican ideologues. While Bush v. Gore demonstrated that the former two are willing to be nakedly partisan, their commitment to broader legal principles will occasionally lead them to cast meaningful votes with the Court's more liberal faction. But Roberts and Alito have little interest in any overarching legal theory and avail themselves of this freedom to reach the outcome most desirable for conservative Republicans in every close case. Their apparent "moderation" is a matter of tone and lack of candor rather than substance. Yesterday's case is another reminder that while Scalia applies more vitriol to his attacks on liberals, he's also more likely to cast votes that are consistent with liberal constitutional values. As amazing as it may seem, Tuesday's case is another illustration that Bush's appointees are actually worse than Scalia and Thomas. We can only hope it will be many years before we see what kind of justices the next Republican president will come up with.

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