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Well, it looks like John McCain will have to stop using Roberts-Alito as if it were one word to describe his preferred type of judicially restrained nominee.
In recent disquisitions about judges, McCain has been trying to simultaneously shore up his conservative base without riling up his moderate friends. It's a difficult rope to walk without hanging oneself. Indeed, the conservatives have already noted a McCain tendency to flatter Roberts and Alito but to omit the more controversial (to moderates) Scalia and Thomas.
Now McCain has a new problem. Roberts and Alito are going different ways. What is a candidate trying to rely on the caricature of judicial activism to do?
Justice Alito has twice rejected the chief justice's willingness to allow government activities immunity from the jurisprudence of the dormant commerce clause that preserves an interstate market from economic protectionism (Kentucky Department of Revenue v. Davis this term and last term United Haulers v. Oneida-Herkimer Solid Waste Management Authority both thoughtfully discussed by Lyle Dennison on SCOTUSblog), and today these Reagan fraternity brothers are divided over an important age-discrimination case. Justice Alito took a lot of heat for carefully parsing the statute of limitation under Title VII last year, which denied a gender-discrimination lawsuit as being beyond the time permitted to sue (Ledbetter v. Goodyear). Roberts agreed with him on that one. Today, in Gomez-Perez v. Potter, however, Alito and Roberts divided again over an age-retaliation claim under the ADEA, with Alito allowing it.
The Alito opinion is a testament to meticulous statutory analysis, fully utilizing text and legislative history as well as situating the decision in the larger body of civil rights and employment statutes and precedent. It gives lie to the notion that Alito is pro-business or anti-employee, so prominently alleged during his confirmation hearing. As his colleagues on the 3rd Circuit knew (and testified, contrary to the academic sniping), Justice Alito is simply pro-reading-the-law-carefully. That is not to say the chief justice doesn't read statutes well—it's just that his dissenting opinion today puts far more emphasis upon a speculation drawn from why the executive branch has separately treated retaliation claims for federal workers differently than can be found in the text and structure of the statutory regime.
What should not be lost, however, is that even as Alito and Roberts disagree, it is a disagreement that is both civil and broadly incorporating of respect for precedent and legislative history.
And what about Justices Scalia and Thomas—those great unmentionable ones to Sen. McCain? They separately dissented in Gomez-Perez because of, among other reasons, one suspects, Justice Scalia's well-known dislike for any mention of legislative history.
Oh, and to make things more interesting, Roberts-Alito split together from Thomas-Scalia in a second case, CBOCS West v. Humphries, implying a retaliation claim under Section 1981, a statute that deals expressly with race only. Thomas and Scalia have made a point of emphasizing that racial discrimination and retaliation for racial discrimination are not one in the same. Analytically, it is a sound point. Unfortunately, it is also a point that the court has rejected several times, and that precedent (right or wrong initially) is too embedded in the overall structure of civil rights law to be set aside, a point nicely highlighted by Emily.
Will the real judicially restrained judge please step forward? Using the canard of widespread judicial misbehavior is just not in the cards for John McCain. We are the better for it, and the independent-minded John McCain of 2000 would have agreed.
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The Supreme Court today held 7-2 that a black former employee of Cracker Barrel can go ahead and sue the company for retaliation, based on his allegations that it fired him for complaining about racial discrimination. A few months ago, I thought that the case might come out the other way and serve as a vehicle for the court's conservatives to rein in employment-discrimination law. Instead, Justice Stephen Breyer's opinion—joined by all the justices but Antonin Scalia and Clarence Thomas—relies on the principle of stare decisis, or respect for past precedent, to allow employees to sue for retaliation based on an 1861 law that doesn't mention retaliation explicitly. The key precedents are a 1969 holding from the Warren Court striking down a restrictive housing covenant and a 5-4 ruling about retaliation claims brought via Title IX (the law that prohibits gender discrimination in school sports) written by Sandra Day O'Connor in 2005. Breyer carefully lays them out and then writes that considerations of stare decisis "impose a considerable burden upon those who would seek a different interpretation that would necessarily unsettle many court precedents." A page later, he acknowledges that the statute nowhere mentions retaliation (nor did Congress add it in amending the law in 1991). But, Breyer writes, "that fact alone is not sufficent to carry the day."
Thomas and Scalia disagree. Kennedy, Alito, and Roberts, however, stand with Breyer in upholding the Warren Court decision and the O'Connor majority opinon instead of going with the plain text reading. There are good reasons for the majority's position aside from stare decisis: As Breyer points out, when Congress re-enacted the law in 1991, lawmakers thought they were expanding the statute's original scope. But the main point is that it will be worth watching if and how today's division over how to read a statute plays out among the conservatives. Also, today's opinion is more fodder for Linda Greenhouse's observation about the decline of the 5-4 split, at least so far this year.
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Eric's provocative question whether "within-family reproduction is good in itself" is essentially asking whether the fall in fertility among existing Americans is fungible with the fecundity of recent immigrants from other nations and cultures. Without indulging too much American exceptionalism, I do think there is a distinctive American culture that is lost by that trade. Giving expression to that distinctiveness would violate every principle of blog writing, but for shorthand, let's just say one finds evidence of it in everything from the natural law premises of this Republic's Declaration of Independence to the great success of the recent John Adams HBO special to the content of any presidential aspirant's stump speech. These things begin to capture some of what is lost by supposing immigration to be a perfect substitute for our modest replacement rate.
Thus the significance of sustaining the marital family is far more than a favorable worker-retiree ratio, though that would be helpful in itself to avoid the coming Social Security bankruptcy attributable to both the population decline, and more immediately, the extreme war-related fiscal irresponsibility of the incumbent president. I concede Eric's point that it is more efficient to have people save for their own retirement and avoid transfer payments, but that is not the economic structure we have.
Eric's pro-immigration sentiment expressed within the sentence "paying people to have more babies doesn't seem reasonable when there are so many millions clamoring to get in" does earn two cheers from me, but it not only understates the uniqueness of American culture, it also misses entirely that a marital family is indeed worth preserving and far more than a "bourgeois construct designed to channel the revolutionary energy of sexuality into diaper changing and carpool planning."
In its traditional form, marriage transforms by covenant the emotional and sexual attraction of two individuals into a lasting relationship (AEI's Michael Novak reports modern marriages have a 66 percent success rate) capable of sharing intimate personal goods as well as serving larger social purposes. That the California Supreme Court declares these same personal goods to be within a same-sex relationship has to date been the public debate. To leap from the acceptance of the inclusionary California ruling to the dismissal of marriage as a "bourgeois construct" is a far more revolutionary notion that I suggest Eric may wish to rethink by simply indulging the thought experiment of how uninviting a world without the civilizing efforts of marital family would be. When the marital union is strong, it is also stable, and in this atmosphere of stability children are welcomed and reared to be responsible, healthy, and well-educated citizens. Who exactly undertakes this responsibility under Eric's model?
Intra-marital union or intra-family, freedom is acknowledged in exchange for the faithful performance by the family of social expectations or obligations toward the education and care of family members. The public sovereign respects the private marital union so long as it sustains itself and yields new individuals with sufficient qualities to maintain the ongoing functions of the community as a whole. In short, it is anticipated that those raised intra-family have received such direction that, upon emancipation and emergence into the public community as free and independent citizens, they will live productive lives and respect the equal dignity of human beings.
Finally, as for "the planet chok[ing] on the greenhouse-gas emissions of the multiplying hordes," this neo-Malthusian supposition is empirically misdirected when world population growth has declined by more than 40 percent since the late 1960s.
Worried about greenhouse gases? It would be far more direct, to use Eric's terminology, to require automakers (and fuel-inefficient, consuming auto-buyers) to pay for the actual value of the air resources their products consume than to undermine the foundation of the civilized world as we know it.
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In his interesting post, Doug Kmiec argues that the U.S. government should adopt French child-subsidy policies in order to encourage Americans to have more children. But unless within-family reproduction is good in itself—more on this in a moment—there is no reason to ape the French, whose motives are, as Kmiec notes, entirely based on demographic fears that do not exist in the United States. Thanks to immigration and the fecundity of recent arrivals, the U.S. population is already growing; why would we want it to grow more rapidly?
Doug thinks that we should use the tax system to compel ourselves to pay otherwise-unwilling others to produce offspring who will grow up and finance our retirement. Wouldn't it be easier if we just saved our own money for retirement or, if that is too hard, increase current Social Security taxes and future payouts? Why this complicated business of bringing into existence an entire generation of workers to serve as a vehicle for transferring our money from our current selves to our future selves?
To be sure, it's possible that we would all benefit if the American population grew. Whether we would is a very tricky question that I won't try to answer, but if so, a better way of populating the land is to admit migrants instead of creating otherwise-unwanted persons by subsidizing childbirth. Paying people to have more babies doesn't seem reasonable when there are so many millions clamoring to get in.
I can't help thinking that Doug's idea that being pro-family means being pro-reproduction reflects an instinctive effort to shore up a social conservative philosophy under assault by our rapidly changing mores. Suppose Americans come to approve of gay marriage and to treat it the same as heterosexual marriage. What becomes of "family values," once such a politically potent slogan? Republican Party strategists must be scratching their heads. If family values can no longer be against homosexuality, what are they against? Single people? Premarital sex? Here's a prediction: The family values debate of the future will pit gays and straights who think everyone should get married and have children against gays and straights who think that marriage is a stodgy bourgeois construct designed to channel the revolutionary energy of sexuality into diaper changing and carpool planning while the planet chokes on the greenhouse-gas emissions of the multiplying hordes.