The Moderates vs. the Extremists

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Check out how the justices voted in this Supreme Court decision that was handed down a couple weeks ago. Arizona v. Gant reflects a division on search and seizure rights that doesn't fall on normal lines. Here is oneway of conceiving of the ideological differences on the Supreme Court:

The More Extreme Conservatives: Justices Scalia and Thomas
The More Moderate Conservatives: Chief Justice Roberts and Justice Alito
The Moderate: Justice Kennedy
The More Moderate Liberal: Justice Breyer
The More Extreme Liberals: Justices Stevens, Souter, and Ginsburg

The lineup for this case:

Majority: Justices Stevens, Scalia, Souter, Thomas, and Ginsburg
Dissent: Chief Justice Roberts, Justices Kennedy, Breyer, Alito

That places the more extreme conservatives and more extreme liberals in the majority and those more moderate in the minority.

Note also that this is a 5-4 decision, so don't let it be said that all the 5-4 decisions are the four conservatives vs. the four liberals with Justice Kennedy as the deciding vote. This sort of division is much more common than you might have thought.

3 Comments

I'd say Alito is more conservative than Scalia, after all, when he was in appeals court he wrote a dissent in US v. Rybar arguing that the federal government didn't have the power to ban home manufacture of machine guns based on the commerce clause. Contrast this to Scalia's vote in Raich (his greatest betrayal IMO).

Otherwise I agree with you though.

That's just one case, though. It's easy to find cases where Alito joins Thomas against everyone else, but it's also easy to find cases where he joins the four liberals against Kennedy and the rest of the conservatives to form the swing vote in the liberal direction. The general trend is that first Thomas and then Scalia are the originalists, Thomas more often using originalist reasoning than Scalia. Scalia is a little more prone to let precedent stand even if he thinks it was wrongly decided. Alito and Roberts are much more willing than Scalia to do that. They're more incrementalist in moving in a conservative direction and resisting movement in a liberal direction. Scalia is willing to deliver more drastic changes to the status quo than they are. Alito is probably slightly more conservative than Roberts on the whole, but they're of a very similar disposition in general, and there are some cases where Roberts is more conservative than Alito.

I should add that there are judicial tendencies that explain this lineup:

Justice Stevens took this side in the earlier case that this decision overturns. He maintains a consistent position. He almost always bows to precedent, even precedent that he voted against originally. But in this case he must have felt so vindicated to have justices across the spectrum agreeing with his original view in oral argument that he sought to pursue overturning it.

Justices Scalia and Thomas are often willing to overturn precedent when they think it was wrongly decided in the first place. They often state their conclusion as a narrow ruling based on the original meaning of a law, even if Supreme Court precedent says otherwise.

Justices Souter and Ginsburg are much more likely than the other liberals on the Court to favor narrow rulings and original meaning when there's a justice-based argument from some of the liberals for a result that goes toward a more wide-ranging decision or a departure from what the conservatives deem to be the original meaning.

On the other hand, Justice Breyer tends to favor precedent the most among the liberals, and Chief Justice Roberts and Justice Alito do so the most among the conservatives. Justice Kennedy is by far the most likely justice to go with his sense of justice rather than what he thinks the law requires. He's the most judicially activist justice on the Court by that measure. It's just that his sense of justice is sometimes in agreement with the liberals and sometimes with the conservatives, and he likes the idea of being a compromiser who brings together competing factions, so he often ends up being a moderate swing vote.

So I'm not saying this is an inexplicable lineup of justices. There are ways that their overall tendencies might lead you to expect the occasional breakdown in exactly this way. It's just got the hilarious appearance of being the extremists on both ends against all the moderates.

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