Jeffrey Rosen continues to claim that liberals "dodged a bullet" when Roberts and Alito were appointed. I continue to find this as unpersuasive as it was a year ago. Some of what he mentions -- such as the rhetoric in dissenting opinions becoming less acerbic -- is completely irrelevant to the impact of the Court. The central problem with the more important arguments can be found here:
In particular, Roberts has been more willing than his predecessor to assign plurality (rather than majority) opinions. In these cases, Roberts begins with the three center-right conservatives (himself, Anthony Kennedy, and Samuel Alito) and tries to attract liberal justices to a narrowly reasoned decision, while letting the hard-line conservatives (Thomas and Antonin Scalia) write separate, more extreme concurrences.
To put Alito and Roberts on the "center right" with Kennedy rather than just on the "right" with Scalia and Thomas is just wrong. Kennedy is a legitimate moderate -- he cast decisive votes with the Court's four more liberal members several times this term and he has done so in many landmark cases. Rosen can't cite any example of Alito and Roberts doing the same thing because they never have in a major case. Moreover, there are examples of Scalia and Thomas casting decisive votes with a more liberal majority. (Roberts and Alito did make 5-4 majorities 7-2 on a couple occasions, but so what?) Roberts and Alito are simply doctrinaire conservatives, not Kennedy-style moderates.
Rosen mistakes some disagreements about how to characterize precedents and what the rule will mean going forward for substantive differences.To exaggerate these differences, Rosen relies on a strawman:
Instead of siding with conservative extremists like Clarence Thomas, who are eager to press the limits of the so-called Constitution in Exile, resurrecting limits on federal power whenever possible, Roberts prefers narrow opinions that can attract support from the center. Liberals ought to applaud this instinct because, even if Barack Obama gets to appoint the next justice or two, it's the only thing standing between them and a Court eager to roll back progressive reforms.Fears of a "Constitution in Exile" reappearing are vastly, vastly overblown. Rosen is greatly underestimating the political constraints on the Court. If the court tried to overturn the new deal, it's decisions wouldn't endure because it would do as much damage to the Republican Party as similar decisions did in 1935. The Court certainly could challenge a unified Democratic government on some marginal issues -- but nothing in their records suggests that Alito and Roberts wouldn't vote with Thomas and Scalia in such cases.
Liberals dodged nothing: Alito and Roberts were home runs for judicial conservatives, and nothing in the first terms of the Roberts Court suggests otherwise.
--Scott Lemieux
