Votes That Matter

Our commenter David Nieporent remains very confused about the argument I’ve been making for years about Sam Alito, although it’s very straightforward:

The point is that this is, well, an incredibly stupid metric. Why is failing to cast a “liberal swing vote” the sign of lack of moderation? It’s a cherry-picked non-stat created by throwing out most of the data.

Now, if he’s the sole ‘conservative’ vote, or one of two — that is, if he’s on the losing side of a bunch of 8-1 or 7-2 decisions — then that might show lack of moderation. But 5-4 votes, almost by their nature, don’t show anything at all.

If the question is, “Will Alito ever vote against the Chamber of Commerce?”, then the answer, as defined by this study, is yes. So why isn’t that “moderation”?

I don’t see what’s complicated about the argument.   There are two sets of data in question. The first set of data shows that Alito is more likely to cast pro-business votes than any other justice, which in itself is inconsistent with assertions that Alito is a relative moderate (assertions that have never had a shred of evidence in their favor to begin with.)

The second set of data is additionally important and isn’t merely arbitrary, because it shows the likelihood that a justice will cast meaningful vote in a heterodox direction. I suspect it is true, looking at cases overall, that Thomas is the justice most likely to write a solo dissent or a more-extreme concurrence in a politically salient case, but these votes matter very little — if you’re bringing a lawsuit you don’t really care if you win 9-0 or 8-1.  (It’s not that these votes don’t show a “lack of moderation,” just that they show a less consequential lack of moderation.)   On the other hand, if you’re a plaintiff in a tort suit or a criminal defendant, there’s a chance that Scalia and Thomas might actually cast a decisive vote in your favor, while Alito’s vote is in play only if you’ve already won. In other words, this second set of data doesn’t show that Alito never votes against the Chamber of Commerce’s position, and I never claimed that it did. What it does show is that Alito has yet to cast a vote of any consequence against a position advanced by the Chamber of Commerce. Which goes to reinforce the always-obvious point that if you’re a class of person whose interests are disfavored by the contemporary Republican Party and are bringing a lawsuit, you’d actually rather have Scalia than Alito.

As it happens, yesterday’s decisions provide another case in point. Alito did cast a superfluous vote in a habeas corpus case making the result 7-2. On the other hand, there was another case in which Alito could have joined the Court’s most liberal member and three of its other conservative embers to hold that if the state wants to require that restitution be paid to victims the state has to follow its own explicit statutory guidelines. But of course he didn’t, because as long as his vote matters Alito will always side with the state in a criminal case. It’s a consistent pattern.