There is nothing "slightly" less minimalist about Alito. Just to take a couple of decisions from the past couple of weeks; look at Ricci and Osborne (DNA). Alito pretty consistently signs on to the "bomb throwing" concurrences, whereas Roberts will generallly sit them out. I could be wrong about this in one respect: I follow criminal/habeas cases much more closely, and in those cases Alito may, as an ex prosecutor, have more separation from Roberts than in other areas.

As for Balkin's endorsement of Ackerman's theory, insofar as it involves a quasi-constitutional status of the statutes in question, it too ignores some of the crim pro/habeas cases where conservative members break rank. In other words, I think there are other areas where defections can be explained by a lot of things other than the Balkin/Ackerman theory. For example, in Harbison v. Bell (which is one of those extraordinary cases in terms of the alignment of judges, and in terms of statutory interpretation), both Roberts and Thomas split from Alito/Scalia. (Thomas ends up at the most liberal result, in fact - a pretty interesting instance of fidelity to his method of textualism.) I suppose you could say that, because these don't involve the invalidation of statutes, they're not really what Ackerman is talking about at all.

Jonathan, I sort of object to the characterization of Boumediene as "non-minimalist." That was one of those cases where each side thought that it had the status quo on its side. See Halliday and White, The Suspension Clause: English Text, Imperial Contexts, and American Implications. Moreover, even if you thought that there was something new about the habeas remedy running to places where the government exercised de fact sovereignty, the Court did not reach the most extreme result in that case. It expressly refused to decide the actual constitutional question of whether prisoners can be detained indefinitely; it only held that the prisoners could file habeas petitions to challenge their detention on that basis.

I can't imagine anyone disagreeing with Balkin about the minimalism, except perhaps Publius and others on the brazenly partisan fringe.

I agree entirely with Johnathan though that there is nothing sudden about it, and indeed I am at a loss as to how an experienced commentator would think so.

I also think MarkField has a good point, but I probably disagree in that I see this as perfectly legitimate judicial minimalism. After all it would be rather self-defeating for the minimalists to simply cede the field to the radicals on the grounds that they got there first!

Alito's concurrence is not minimalist or non-minimalist since there's very little legal analysis in it. He said in the beginning that he's writing it largely to present his view of the factual record. Was it unnecessary? Maybe. It's not like we don't know that race hustlers hold urban politicans by the balls.

Alito's concurrence is not minimalist or non-minimalist since there's very little legal analysis in it.

I'm not sure if that is right. Minimalism, as far as I can see, reflects an attitude of modesty about the proper role of the judicial branch. Such modesty would normally suggest that an appellate judge working from a record and sitting far away from New Haven should not normally write all sorts of wild accusations in the face of a much more neutral trial court ruling, especially if it is all obiter dicta. In Publius's words:

Unlike the Supreme Court, the lower court actually ruled on the pretext issue, so it makes sense that he came up. But the lower court opinion makes only passing references to him in the employment discrimination discussion. And even when he does come up, the lower court opinion describes him in far more general terms – e.g., he is a “vocal” and influential pastor. The opinion doesn’t go into detail about him personally – largely because that’s not relevant to anything.

Alito's Ricci concurrence is helpful to employment discrimination plaintiffs. He focused on the machinations going on behind the scenes with the New Haven mayor and his administration but the dissent was right to point out that the decision to scrap the tests was made by the Civil Service Board in a vote of 2-2, not the mayor's office.

Alito suggests that the evidence is sufficient to infer the mayor's office influenced the decision of the board members who voted to scrap the test (even though those 2 board members weren't deposed so there's no evidence they didn't make an independent decision).

A lot of plaintiff's lose cases because at Summary Judgment, although they can show a discriminatory motive by some people, they can't show that the ultimate decisionmaker had that motive and it's not enough that those with some input may have had a bad motive.

Arguably (I would disagree) a miminalist would stick to the formal record and testimony, and avoid speculation about subjective motivations.

I wouldn't. That's exactly my point. I'd expect a modest judge to remand in this case, as the Obama administration proposed. If you're not going to remand, at least rule without referring to "facts" that the trial court would be better situated to examine than the Supremes.

Alito's point seems to be that the trial and appeals court rulings (as well as the dissent in the Supreme Court) are egregiously wrong, based on what he sees to be the facts as revealed by the record.

[Snark]
Yes, Republicans are well known for their fondness of Revelation. I'm not sure, though, whether Revelation is a suitable basis for a Supreme Court opinion.
[/Snark]

More seriously, revealed law is a foundation of modern law, and one which Alito would be very conscious of.

But in this case, the problem is with Alito's revealed facts...