Justice Alito is often compared to Justice Scalia in his level of conservativism. In my opinion there are some significant differences between the two. A recent piece by Aziz Huq in Politico describes, “[Alito’s] early, subtly disparaging nickname, ‘Scalito,’ suggests he is a mere mini-me clone of the late Justice Antonin Scalia.” The data show a different picture though. Alito has yet to join four liberal justices in a 5-4 decision. This is out of 226 cases.
Now more on Scalia…Justice Antonin Scalia sat on the Supreme Court from his confirmation in 1986 until his death in 2016. During that time he voted in 2829 cases. He was in dissent 476 times and in the majority 2353 times giving him a frequency of just over 83% in the majority. Of these cases 560 were decided by 5-4 votes. In these close cases he was in dissent 212 times and in the majority 348 times. Scalia’s frequency in the majority is obviously less in these close cases at a more modest 62% (for a point of reference Justice Stevens was in the majority only 45% of the time in 5-4 decisions).
Scalia was described in an NPR article as “perhaps the leading voice of uncompromising conservatism on the nation’s highest court.” CNN described that he was “known for bold disagreement, conservative arguments, pointed questions and the occasional crude hand gesture.” An article for the L.A. Times relayed that “Antonin Scalia is alleged to be one of the great intellects of conservative jurisprudence, but his comments during oral arguments over a challenge to the 1965 Voting Rights Act displayed all the mental acuity of a third-tier talk radio bozo.” I could go on and on.
Although he was known for riding elephants with Justice Ginsburg and going hunting with Justice Kagan, he wasn’t well known for siding with these more liberal justices in Supreme Court decisions.
As it turns out, in 5-4 decisions Scalia joined a majority of consisting of no other conservative justices on 16 occasions. This means he was in such a majority composition in just under 3% of the 5-4 decisions during his 28+ years on the Court.
Most of these decisions were not landmark decisions like Texas v. Johnson. In the earlier years the Court majorities included Justice Brennan, Marshall, Stevens, and Blackmun. They later included Justice Kennedy, then Souter, Ginsburg, Breyer, Sotomayor, and lastly Justice Kagan.
Looking at this on a term by term basis, the only term with three such decisions was in Scalia’s first term on the Court in 1986. Then there were two in 1988, one in 1989, and one in each of the 1990, 1992, 1993, and 1994 terms. After the 1994 case of Tome v. United States there was an 8 term gap until the next such decision in 2002. The rest of these 5-4 decisions with liberal justices were in the 2004, 2005, 2008 (twice), and 2012 terms. The next time someone tries to paint Scalia as entirely one-dimensional judge you can use these data points as ammunition for a strong rebuttal.