In a partisan league of his own

July 2, 2014, 9:04 PM UTC

By Steve Benen, Steve Benen

And it was at this point that everyone immediately knew that conservatives had won both cases.

What about the possibility of a surprise? How could everyone be absolutely certain that Alito would side with the right? Was it really so inconceivable that Alito would honor precedent and play against type?

Actually, yes, it was inconceivable.

Ian Millhiser made a compelling case today that Alito is "the most partisan" justice on the bench, making it pretty clear what to expect when he's written a ruling.

According to data by Washington University Professor Lee Epstein, Alito is more likely to cast a conservative vote than anyone else on the Court. To be fully precise, that does not make Alito the Court’s most conservative member. That honor belongs to Justice Clarence Thomas, who is the only member of the Court who openly pines for the days when federal child labor laws were considered unconstitutional. Yet, while Alito can’t match Thomas’s radicalism, he is far and away the most partisan member of the Court. To explain this distinction, Thomas not a partisan. He is an ideologue. His decisions are driven by a fairly coherent judicial philosophy which would often read the Constitution in much the same way that it was understood in 1918. While this methodology typically leads him to conservative results, it does occasionally align him with the Court's liberals.... What makes Alito a partisan is that there is no similar case where his judicial philosophy drove him to a result that put him at odds with his fellow conservatives.

To put this in perspective, note that Millhiser highlighted a striking detail: Alito is the only sitting justice who has never crossed over -- in effect, breaking ranks with the usual ideological allies -- in a closely divided case.

Nine years ago, you'll recall that Alito was not George W. Bush's first choice. Rather, the Republican president initially nominated Harriet Miers, the White House counsel at the time, for the lifetime appointment on the high court.

It was among the more foolish decisions Bush made, which ended in an embarrassing withdrawal.

Miers was obviously unqualified, but Bush's second choice, Sam Alito, is in many ways worse.

Millhiser's indictment on Alito's partisanship, his activism, his reliance on a raw political perspective, his desire to be "a corporation's best friend," makes a persuasive case and is worth checking out.