Samuel Alito’s Collegiality Makes Him Dangerous

Andrew Siegel, a former clerk for Justice John Paul Stevens, believes that, while it seems to be mollifying liberals, Samuel Alito’s charm and civility actually make him more dangerous to their positions.

Alito’s frightening niceness (TNR)

The nomination this week of Judge Samuel A. Alito Jr. to succeed Justice Sandra Day O’Connor set off a predictable scurry to divine what kind of justice he might make and, in particular, to decipher whether the judge commonly tagged “Scalito” would live up to that moniker. The verdict on the latter question was swift. After skimming his opinions and interviewing his friends and associates, nearly every source concluded that Alito and Justice Antonin Scalia share little beyond Italian-American heritage, Catholicism, and a conservative voting record.

In particular, those familiar with Alito stressed that his even-keeled temperament, collegiality, and lawyerly writing style distinguished his professional demeanor from that of the volatile, sarcastic, and often hectoring Scalia. The nearly universal conclusion was that Alito was less of a Scalia clone than some of the other federal judges considered for the post, most notably the rumored runner-up, Judge J. Michael Luttig.

The implication of this conclusion was that liberals should breathe a sigh of relief, since Alito is no Scalia 2.0. The reality, however, is much more complicated. While Scalia’s bellicose tone and general lack of civility have long been fodder for his left-wing critics, they have also served to hold back his judicial agenda, both by alienating potential allies within the Court and by marking his ideas as extreme in the court of public opinion. But Alito, who marries Scalia’s conservative jurisprudence with tact, politeness, and a deferential writing style, is infinitely more dangerous to liberals. In Alito, they may have met their worst nightmare.

[…]

In the end, however, if Judge Alito becomes Justice Alito, his greatest influence might stem not from his vote or his pen but from his collegiality. For more than three decades, efforts to assemble a consistent right-wing majority on the Supreme Court have foundered, at least in part because of personality conflicts among the conservative justices. To take the highest-profile example, as the history of the Rehnquist Court gradually comes to light, it becomes increasingly clear that Scalia’s unwillingness to credit the intelligence and good faith of those who disagree with him took a particular toll on his relationship with O’Connor, potentially costing him a decisive vote to overturn Roe v. Wade and almost certainly costing him majorities in a slew of lower-profile cases.

Unless Alito undergoes a personality transplant if he enters the Beltway, it is literally impossible to imagine him demeaning the qualifications of a colleague, exasperating his fellow justices by hogging the spotlight at oral argument, or running his mouth off in a speech or a dissenting opinion to blow off steam. In his years on the Third Circuit, Alito’s decency and civility have earned him respect across ideological lines. Recently, former colleague Timothy Lewis endorsed his Supreme Court candidacy and said that another colleague, the late Chief Judge A. Leon Higginbotham Jr., a notoriously hostile critic of Scalia and Justice Clarence Thomas, had also praised Alito.

If you are a fan of the justices who fought throughout the Rehnquist years to pull the Supreme Court to the right, Alito is a home run–a strong and consistent conservative with the skill to craft opinions that make radical results appear inevitable and the ability to build trusting professional relationships across ideological lines. If, on the other hand, you are a committed opponent of the Scalia-Thomas-Rehnquist agenda who has been carefully evaluating O’Connor’s potential replacements with concern for the Court’s future direction, Alito might be the most dangerous possible nominee.

An interesting argument which has merit. Scalia’s scathing dissents are entertaining reading, to be sure, but they almost surely hinder his ability to achieve consensus and persuade swing justices. On the other hand, I can’t believe that there have been very many cases where Sandra Day O’Connor–or any other Justice–changed their position on an important vote to spite Antonin Scalia.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

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