OPEN UNIVERSITY APRIL 23, 2007
by Cass Sunstein
No one doubts the sheer ability of Chief Justice John Roberts and Justice Samuel Alito. No one should doubt their characters or their commitment to the law. But at the time of their confirmations, there was real disagreement about whether they would turn out to be essentially predictable in their votes, or whether their commitment to the law, and their lawyerly skills, would lead them, on occasion, in surprising directions. Many people, both liberal and conservative, argued that "you can never predict what a judge will do."
It is early as yet, but after significantly more than one term, it's hard to find any major surprises. In the two key cases of the term thus far--involving climate change and partial birth abortion--Roberts and Alito voted with Scalia and Thomas (in favor of the position of the Bush administration). In the most visible case last term, involving military commissions, Alito was essentially with Scalia and Thomas in his conclusion (and on the key points, in favor of the Bush administration). Roberts voted the same way on the court of appeals and hence was recused at the Supreme Court level.
Statistical analysis comes to a similar conclusion. After one year, Roberts and Alito voted most with one another (90 percent of the time!), and their rates of agreement with Scalia and Thomas were quite high (about 84 percent in Roberts' case,
76 percent in Alito's). Their rates of agreement with the Democratic appointees, Breyer and Ginsburg, were significantly lower.
Of course statistical measures cannot capture the importance of a few unpredictable votes in significant cases. But offhand, it is difficult to find any major surprises, at this early stage, from either Roberts or Alito.