Bench Memos

Who’s Being Partisan?

ThinkProgress’s Ian Millhiser has a tiresomely tendentious essay lambasting Justice Alito as “The Most Partisan Justice.” Millhiser draws a sensible distinction between someone whose “decisions are driven by a fairly coherent judicial philosophy” (though he attaches the pejorative label “ideologue” to Justice Thomas in crediting him with this approach) and someone who simply reaches partisan results. But rather than try to give an example or two (beyond his wildly mistaken account of Hobby Lobby) of instances in which Alito has supposedly been unfaithful to his judicial philosophy in order to reach partisan results, Millhiser resorts to statistical flim-flam.

For Millhiser, Justice Ginsburg can’t be labeled a partisan because on one occasion in her 22 years on the Court, she “broke with her fellow liberals in a case brought by unions seeking to make it easier for them to collect funds.” Never mind that virtually no one has ever heard of the case, that her vote was unnecessary for the outcome, and that she concurred only in part and in the judgment.

By contrast, Millhiser won’t count to Alito’s credit the “handful of cases where Alito joined a 5 justice majority [sic] that included one other conservative and three liberals.” What Millhiser’s confusing phrasing (“joined a 5 justice majority”) seems designed to obscure is that Alito provided the decisive fifth vote in those cases. Further, in the one case that I quickly found that evidently is supposed to fit Millhiser’s description, the so-called “other conservative” was Justice Kennedy (who is no conservative).

For a vastly more intelligent account of Justice Alito’s decisionmaking—one that emphasizes how distinctive his judicial approach is from that of the “three other conservative justices with whom he is generally lumped​” and how that approach has led him to stand apart from them in major First Amendment cases—see Adam White’s 2011 Weekly Standard essay, “The Burkean Justice.”

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