June 28, 2007

Two kinds of conservatives

In a Washington Post op-ed today, Cass Sunstein sketches a fascinating portrait of the Roberts Court. "The real divide on the Supreme Court", he writes, is not between 'liberals' and 'conservatives', but rather "between two kinds of conservatives". Sunstein terms these two conservative coalitions the 'minimalists' (Roberts and Alito) and the 'visionaries' (Scalia and Thomas). This divide can be clearly seen in the writings associated with this week's decisions - as in FEC vs. WRTL, Morse v. Frederick, and Hein v. Freedom from Religion Foundation. In all these cases, the minimalists and the visionaries have concurred on the outcome, but differed in their reasoning. As Sunstein puts it,
"Alito and Roberts typically seek to preserve the court's precedents and to avoid theoretical ambition. By contrast, Scalia and Thomas are not cautious about jettisoning the court's precedents and rethinking them from the ground up."
Incidentally, there's an interesting contrast here between this characterization of Alito - as a moderating influence on the more 'visionary' brand of conservatism that already existed in the Supreme Court - and the hysterical media portrayal of Alito at the time of his nomination as completely 'out of the mainstream'. CFJ worked hard to counter that portrayal by pointing to Alito's restraint, commitment to precedent, and due deference to the law. His record to date has lived up to that record of modesty. And as Sunstein points out today,
"Alito and Roberts have surprised no one. Careful and lawyerly, and focused on the particular problem at hand, they reject huge changes in favor of small steps. But almost all of their small steps are going in the same direction."