Bench Memos

O’Sullivan on Alito

John distinguishes between “philosophical” and “temperamental” conservatives:

Some conservatives — William Rehnquist in later years — are prepared to let bygones be bygones. They apply strict judicial construction to future cases, but they will respect the precedents of the last 50 years even when they believe those cases to have been wrongly decided. Others — Justice Scalia springs to mind — are prepared to overturn at least the more egregious judicial errors of recent years when either the Constitution or statute law points plainly to a different verdict.

In effect the first school, conservative in temperament, would entrench the established liberal gains since the Warren Court; the second school, conservative in philosophy, would overturn the judge-made successes of liberalism in the past as well as challenge those in the future.

I would add only that it is possible to be conservative both philosophically and temperamentally. A judge could try to move constitutional law incrementally toward the Constitution. Such a judge might decline to vote to overrule Roe the first time an abortion case came up, but rather hold for democratic authority in that case and gradually move toward a post-Roe world. Alito seems to have both a conservative temperament and a conservative philosophy, and perhaps this will be hi

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.


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