Graubart on the Varieties of Judicial Conservatism

Noah Graubart has an excellent essay on the varieties of judicial conservatives, particularly in respect to the Alito nomination. Unlike most commentators, he recognizes that there are different varieties rather than casually lumping Scalia and Thomas together. That alone is refreshing to read. He writes:

Of course Bush has selected a nominee who is hostile to Roe v. Wade (any who doubt that Chief Justice Roberts is equally hostile are fooling themselves). But, does Judge Alito share Justice Thomas" belief that the president"s commander-in-chief powers are virtually unbridled, or does he share Justice Scalia"s opinion that the Bush administration"s treatment of so-called "enemy combatants" is patently unconstitutional? Does Alito believe that his home state of New Jersey could establish itself as the Catholic (or Lutheran, Buddhist, etc.) State of New Jersey without offending the First Amendment? Justice Thomas is of such a mind; Justice Scalia, on the other hand, has never embraced such a radical view of the establishment clause. Would a Justice Alito, if he turns out to be an "originalist," (as Thomas and Scalia describe themselves), apply that philosophy consistently, as Justice Thomas has done, or would he twist its malleable dictates to reach outcomes more palatable to the conservative conscience as, I believe, Scalia has done?

People for the American Way, the Alliance for Justice, and other interest groups do themselves and their supporters a tremendous disservice by ignoring these crucial distinctions in favor of highlighting what should already be obvious to all: Bush chose a "true" conservative. The real question is, "Which kind?"

One of the key differences between Scalia and Thomas is the question of stare decisis. Thomas doesn't believe in it at all, Scalia does. That leads to radically different results. But as Graubart points out, stare decisis cuts both ways:

To be sure, stare decisis is not a panacea for all that ills the left. After all, an unwavering respect for precedent would have prevented the Warren Court"s landmark reversal on segregation in Brown v. Board of Education. Similarly, the court"s 2003 ruling in Lawrence v. Texas, holding state anti-sodomy laws unconstitutional, would never have arrived were it not for the readiness of the liberal members of the court to reconsider Bowers v. Hardwick.

Further, stare decisis, because of its vague and amorphous contours is a particularly difficult concept to apply neutrally. The willingness of Justices Kennedy, O"Connor, and Souter (who collectively extolled the virtues of stare decisis in Casey) to revisit Bowers in Lawrence drew the ire of Justice Scalia in his Lawrence dissent. Scalia bluntly accused that the Lawrence decision "has thereby exposed Casey"s extraordinary deference to precedent for the result-oriented expedient that it [was]."

When it comes to stare decisis flip-floppery, however, Scalia is arguably as guilty as those he ridiculed in Lawrence. At a recent Federalist Society Lawyers Division meeting in Houston, Scalia elaborated on his standard explanation of the contrast between him and Thomas on stare decisis. Scalia repeated that Thomas is happy to revisit lines of cases he believes are wrong, no matter how settled the area is. Scalia then asserted that he believes it is best to move on once the battle has been fought and lost. Perhaps remembering the makeup of his audience, though, Scalia then added something to the effect of, "Except when it comes to Casey." Indeed, Scalia has expressed his desire to overturn many legal doctrines with which he disagrees. This willingness, however, is a far cry from Thomas" blank-slate approach to constitutional interpretation.

Because stare decisis cuts both ways, it has become little more than a codephrase. When a liberal talks about the importance of stare decisis, they really mean that they don't want Roe v Wade overturned. When a conservative says he has a healthy respect for stare decisis, it's a signal to the Democrats in Congress that he's trying to portray himself as not wanting to overturn that ruling. But history shows that what a nominee says is often irrelevant:

Given past experience, we should also be particularly wary of any assurances from Alito of his respect for stare decisis. During his confirmation hearing, then-Judge Thomas explained, "Stare decisis provides continuity to our system. It provides predictability, and in our process of case-by-case decision-making, I think it is a very important and critical concept." Of course, Justice Thomas" laughable comment on Roe (contending that he"d never discussed the case with anyone, ever) should have tipped us off that the rest of his testimony needed to be taken with a grain of salt. ." Furthermore, when it comes to stare decisis, perhaps Judge Alito"s relative closeness to Scalia or Thomas will have little effect on the abortion question -- neither Thomas nor Scalia would think twice about overturning Roe.

There is much more in the article, including a discussion of the differences between Thomas and Scalia on the question of the scope of Federal power under the commerce clause. He does a great job of cutting through the codephrases and nonsense spread by both sides on such matters.