John Roberts vs. Antonin Scalia

Understanding the changing face of legal conservatism


Writing at The Atlantic, legal commentator Garrett Epps previews the Supreme Court's upcoming term, which he dubs the start of "the post-Scalia era." Epps' main argument is that while Justice Antonin Scalia "has been an influence, perhaps the most significant one in the past three decades," Chief Justice John Roberts is the new sheriff in town, the new conservative force to be reckoned with. This changing reality became most apparent back in June when Roberts sided with the Court's liberals and saved the Patient Protection and Affordable Care Act from extinction.

When it comes to the big picture, Epps makes a number of good points. Scalia's influence may indeed be on the wane and Roberts' power is certainly on the rise. But when Epps goes into greater detail about these various practitioners of judicial conservatism, his arguments fly wildly off the rails. Take this passage on Scalia's diminishing influence over his newer colleagues on the bench:

Roberts and Alito, at any rate, seem impatient with originalism and eager to move into new areas like libertarian economic thought. They are glad to get Scalia's vote, but less interested in his routines from old-time radio.

Libertarian economic thought! That's a laugh riot. I would be very interested in seeing any evidence Epps might produce for this dubious assertion. I assume he's referring to the fact that Roberts and Alito both agreed that Obamacare's individual mandate exceeded congressional power under the Commerce Clause, an argument prominently advanced by libertarian lawyers such as Georgetown's Randy Barnett. But of course that's not an economic argument, it's a legal one, rooted in constitutional history and applicable judicial precedent.

Epps' take on Justice Clarence Thomas is equally suspect. According to Epps, Thomas is a "solid vote," one "whose position is not in doubt. They tend not to influence others." That's in contrast to Scalia, who Epps calls an influential vote, one "who by force of argument gradually reshape whole areas of law."

Scalia has had an impact, no doubt about that. But so has Thomas. In fact, we now know that Thomas has been a major influence on the Court, including on the votes of Scalia himself. As Jan Crawford reported in her superb 2007 book Supreme Conflict, which tells the inside story of the Supreme Court from the era of William Rehnquist to the appointments of Roberts and Samuel Alito, Thomas' forceful arguments reshaped things from the outset. As she writes, "After Thomas's very first conference, Scalia changed his mind to side with him in the Foucha case, and on several other occasions that term, Scalia switched his vote to join Thomas in dissent. But these maneuvers were unknown to outsiders and Court watchers."

They are apparently still unknown to some Court watchers.

The changing face of legal conservatism, both on the Supreme Court and off, is one of the most significant legal stories of our time. So it's important to get these details right.