I read this
AP Article in the paper Sunday, and kept trying to think long and hard as to when I had ever seen a story written about the liberal justices on the Supreme Court. I couldn't think of 1 that highlighted Ginsberg, or Breyer, or Souter, or Stevens, or how lock step they are in voting in the affirmative on every single leftist case that comes before them. Yet, stories about Scalia, Thomas, and now Roberts & Alito are common place, in proclaiming how consistent they supposedly are in voting for conservative causes. WSJ's Taranto wrote up an excellent response to that "gem of legal analaysis" by the AP;
Ideological or Illogical?An Associated Press dispatch about Justice Sam Alito includes this gem of legal analysis:
Alito has voted with Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas in every case in which the court has been ideologically divided. Really? We found 15 cases in which Alito did not vote the same way as Roberts, Scalia and Thomas, including five in which Alito was on one side and all of the other three were on the other:
- In Empire Healthchoice Assurance v. McVeigh, Howard Delivery Service v. Zurich American Insurance, Cunningham v. California and the delightfully named United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, Roberts, Scalia and Thomas were in the majority, while Alito dissented.
- In Zuni Public School District No. 89 v. Department of Education, Alito was in the majority, while Roberts, Scalia and Thomas dissented.
- In Watters v. Wachovia Bank, Alito was in the majority, while Roberts and Scalia dissented. (Thomas sat this one out.)
- In Day v. McDonough, Global Crossing v. Metrophones, James v. U.S., Osborn v. Haley and Philip Morris v. Williams, Roberts and Alito were in the majority, while Scalia and Thomas dissented.
- In U.S. v. Gonzalez-Lopez, Scalia wrote the majority opinion, while Roberts, Thomas and Alito dissented.
- In Lopez v. Gonzales and Medimmune v. Genentech, Roberts, Scalia and Alito were in the majority, while Thomas dissented.
- In U.S. v. Resendiz-Ponce, Roberts, Thomas and Alito were in the majority, while Scalia dissented.
Careful readers will have noted that the AP qualified its statement: It said Alito voted with Roberts, Scalia and Thomas when the court was "ideologically" divided.
So how do we know when the court's division was "ideological"? This seems to be a reference to the popular political taxonomy of the court, dividing it into "conservative" justices (Roberts, Scalia, Thomas) and "liberal" ones (John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer), with Anthony Kennedy a wild card. The AP suggests that Alito is a "conservative" because there has been no case in which the four "liberal" justices and Alito voted one way and the three "conservative" justices voted the other. (Zuni came close, but Souter dissented.)
But wait.
Consider one of the most contentious cases of the Supreme Court term, Gonzales v. Carhart, in which the court upheld the Partial-Birth Abortion Ban Act of 2003. Although this is the only abortion case in which Justice Alito has ruled, the AP describes him as "a reliable vote in favor of . . . restrictions on abortion." In truth, Alito, along with Roberts, merely joined the opinion of Justice Anthony Kennedy, who assuredly is not a reliable vote in favor of restrictions on abortion. Neither Roberts nor Alito signed on to Thomas's concurrence (joined by Scalia) rejecting the entirety of the court's pro-abortion jurisprudence.
Which raises another question: Why is Roberts, who joined the court only a few months before Alito, assumed to be a "conservative" justice?
As noted above, there have been five cases in which Roberts and Alito were in the majority and Scalia and Thomas dissented. In two of those cases, all four "liberal" justices (and Kennedy) were in the majority along with Roberts and Alito. Couldn't those be "ideological" cases in which Roberts and Alito both swung to the "liberal" side?The AP seems to see "ideological" division when the court splits over politically contentious subjects. In addition to abortion, the AP characterizes Alito as "a reliable vote in favor of the death penalty [and] expanded police powers." It also cites his dissent in a case involving global warming.
What the wire service seems to be suggesting, then, is that the justices' opinions on these topics are driven by political ideology rather than the legal merits. If this is true, it is an indictment of the Supreme Court, which is supposed to be above politics.Ideological or Illogical?
