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.