MR. RIGHT
ON FEBRUARY 25, when the GOP candidates gathered in Houston for a debate, nearly two weeks had passed since Justice Antonin Scalia’s sudden death, and the future of the Supreme Court was dominating the campaign. Vowing to appoint a “principled constitutionalist,” Sen. Ted Cruz (R-Texas) slammed previous Republican presidents for nominating justices who proved to be insufficiently conservative. “The reality is, Democrats bat about 1,000,” he said. “Just about everyone they put on the court votes exactly as they want. Republicans have batted worse than 500. More than half of the people we put on the court have been a disaster.”
To Cruz and his allies, Chief Justice John Roberts Jr., appointed by George W. Bush, falls into the “disaster” category for his votes preserving the Affordable Care Act. So does Justice Anthony Kennedy, nominated by Ronald Reagan, for siding in favor of legalizing same-sex marriage. Even Scalia, whom Republican candidates have effusively praised for his “originalist” interpretation of the Constitution, occasionally surprised his ideological brethren by siding with the court’s liberal wing.
If a Republican appoints the next Supreme Court justice, he won’t be looking for another Roberts, Kennedy, or even Scalia. Instead, he will seek another Samuel Alito—whose rulings on issues from abortion to unions to affirmative action never deviate from the conservative line.
“They’d like to have another justice who is perceived as having the intellect of Scalia, the writing skills of Scalia,” explains Erwin Chemerinsky, dean of the University of California-Irvine law school, who testified against Alito’s nomination. “But in terms of votes, they’d like to have Alito. He is in every case, in every area, a conservative. If you want to know his judicial philosophy, just look at the Republican Party platform.”
Predictability became the gold standard of a conservative Supreme Court justice, thanks in large part to David Souter, the George H.W. Bush appointee and “stealth liberal” whose nomination still haunts Republicans. Unlike Souter, who turned out to be a truly independent jurist, Alito “hasn’t changed a bit,” says the justice’s longtime friend Charles Cooper, a conservative Washington lawyer. “You can’t say that about too many people who have the kind of position he has.” Indeed, throughout his career, Alito has stayed true to his roots in the Reagan Justice Department, whose crusading lawyers laid the groundwork for the modern conservative legal movement that remade the nation’s federal courts. During his first decade on the Supreme Court, he has tilted the institution further to the right than any other justice since Clarence Thomas, who replaced legendary civil rights lawyer Thurgood Marshall 25 years ago.
“Justice Alito’s importance as an anchor of the conservative wing of the court will only grow in the wake of Justice Scalia’s passing,” notes David Lat, who founded the blog Above the Law and has argued before Alito on the 3rd Circuit Court of Appeals. But the fate of that conservative wing now also hangs in the balance: How Alito spends his next decade on the court—either cementing the conservative agenda or being relegated to a frustrated minority—may hinge on the
