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Sunday, September 11, 2005

Comparing Roberts and Scalia

Here's my pre-confirmation hearings rant on a point I've heard any number of people make, both on tv and in person, over the past few weeks. The point is that while Roberts is conservative, he's something of a squish, not really an originalist like Scalia (Thomas is usually not mentioned here). The point seems to be that, unlike Scalia, Roberts will be less doctrinaire in his conservativism because he doesn't have an overarching judicial philosophy (i.e., originalism).

This point confuses two things: (1) judicial philosophy and (2) policy preferences as to case outcomes. These two are not really that related. I mean, Roberts could have no judicial philosophy at all and still be a consistent conservative vote on the Court. Or, he could have the "right" judicial philosophy and not be a consistent conservative vote. And there's almost nothing in Roberts's record that suggests that he isn't a down-the-line, true-blue, hardcore conservative, as that term is understood today, and a loyal Republican as well. So the issue of judicial philosophy is really a non-starter here; or, really, it's misleading.

My theory is that Republicans have gotten confused by their own talking points. They'e spent so many years discussing something called "judicial philosophy" that they forget that what really matters (from a political, as opposed to a strictly legal perspective) are the decisions the Court reaches in particular cases and not how the Court gets there.

Here's an example. Let's say that the Court is deciding an Establishment Clause case. The state of Ohio wants to provide vouchers to students attending parochial schools, for example. Now, the reasoning in the majority opinion can go through all the standard things cited, on either side, about which presidents declared national days of Thanksgiving and which did not, how long Congress has had a chaplain, and so on. Or, it can just cite a few precedents, maybe correctly, maybe not. Or, the opinion could talk about what the word "respecting" meant in eighteenth-century dictionaries. Or, it could talk about international law. Or, it could talk about the policy consequences of particular choices, even. Or, about evolving standards of religious freedom since 1791. Really, it doesn't matter where the rubber hits the road: does the state of Ohio policy stay in place, or doesn't it?

Roberts is almost certainly a consistent conservative vote on the Court until I retire from the workforce. Doesn't matter if he has a consistent judicial philosophy. Indeed, as Justice Scalia sometimes shows, having a judicial philosophy means that sometimes your vote is less than predictable (Hamdi discussed yesterday is an example). My guess is that Roberts's votes will be pretty predictable.


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