I guess the Chief-Justice-Roberts-Is-Cunningly-Transforming-The-Supreme-Court meme is getting a tad trite, so Kenneth Jost has moved onto assailing Justice Alito as the scion of the Supreme Court’s rightward lurch. In this post, he calls Justice Alito the “court’s most powerful justice”:
As predicted by Democrats and liberal groups who unsuccessfully tried to block his confirmation, Alito has staked out a position at the far right of the court’s ideological spectrum, in some respects even more ideologically pure than fellow conservatives Antonin Scalia and Clarence Thomas. In the process, Alito has become the court’s most powerful justice, enabling the conservative majority to shift American law to the right on such hot-button issues as abortion rights, campaign finance regulation, school integration and gun control.
Alito wields power not by swinging from side to side but by standing fast. He flexed power from his first months on the court, when he cast the deciding votes in three cases that had to be re-argued after O’Connor’s departure. With the other justices divided 4-4, Alito in effect became the one-man court in rulings in 2006 that weakened the “knock and announce” requirement for police, limited free-speech protections for public employees, and upheld Kansas’s death penalty statute.
As the junior justice until Sonia Sotomayor’s appointment in 2010, Alito voted last in the justices’ private conferences, where cases are actually decided and opinions assigned. In that role, Alito literally cast the deciding votes in 5-4 rulings in the momentous 2006-2007 term that upheld a federal ban on a specific abortion procedure, weakened the McCain-Feingold campaign finance law, limited school districts’ ability to promote racial diversity, and restricted taxpayer suits against government subsidies to religious groups. He was also the tie-breaker in the well-known Lily Ledbetter case, which made it harder to bring pay discrimination suits in federal courts until Congress reversed the ruling by statute.Jost comments on Jan Crawford dubbing him the Court’s “most insightful and strategic questioner” and Mike Sacks calling him the Court’s “enforcer.”
Extending the theme that Alito (and previously Roberts) is just changing stuff, Jost argues:
All of those rulings went against the grain of what had seemed to be established precedent or dominant positions in lower courts. As in the prison crowding case, however, Alito is willing to find his own facts or make his own law. Writing for a 5-4 majority in an Arizona case challenging bilingual education in 2009, Alito found “documented, academic support” for the view that structured English immersion is the better educational technique, but failed to mention the dominant view among experts favoring dual-language instruction. In another 5-4 decision a year earlier striking down a minor part of the McCain-Feingold law, Alito relied in part on a lower court decision striking down a public campaign financing scheme without acknowledging that most federal court decisions have upheld such laws.
Justice Stevens made similar points on 60 Minutes. I suppose whenever a precedent is overturned, or a new case goes against the “grain of what had seemed to be established precedent or dominant positions,” it is a bad thing.
Let’s see if this new wave of attacks on Alito sticks.