Commenting on today’s Supreme Court decisions, Jack Balkin writes:
George W. Bush promised to appoint Justices in the mold of Thomas and Scalia. But Roberts and Alito have not been willing to go as far as Thomas and Scalia in these cases. That may be because they are new on the Court and not yet ready to overrule cases left and right (mostly to the right). Or it may be because they are genuinely “conservative” in the sense of preferring slow and steady incrementalism to the large changes in doctrine that Scalia and Thomas prefer. In any case, Roberts and Alito do not seem to be “in the mold” of Scalia and Thomas, although, to be sure, they seem to be just as conservative, and perhaps that is what Bush really meant.
I think it’s clearly right that Roberts and Alito are cut from a very different cloth than Scalia and Thomas. Here’s what I predicted a year ago, which I think has looked pretty accurate so far:
My speculation is that Roberts and Alito will end up harkening back to an older kind of judicial conservatism