Eminent Domain

That's what Orin Kerr at Volokh thinks. Prof. Kerr thinks that Justice Alito will be somewhere between Justice Kennedy and Chief Justice Roberts on the left-right continuum. Kerr looks at two sources...

First, it was the impression I had of Alito when I was a Third Circuit law clerk. I clerked in 1997-98, and assisted on some panels in which Alito participated. Alito struck me as right-of-center, but very institutionalist. As Judge Garth (who ought to know) said in his Senate testimony, "Make no mistake, he is no revolutionary."

Second, I think the testimony of Alito's colleagues and former law clerks (of all ideological stripes) is particularly telling. If Alito were in fact a revolutionary, or had a big agenda, surely it would have come out at one point or another: It seems unlikely to me that an agenda-driven judge can keep that agenda secret from his colleagues and clerks for 15 years on the bench

Interesting points, but I have my doubts. I have my doubts because Alito did not become a federal judge until after the defeat of Robert Bork's nomination. Bork's defeat sent a message to judicial conservatives: if you want to make it to the Supreme Court, be careful about what you say.

There are a lot of legal positions that can be easily taken and accepted by the legal community that are horrible politically. Take Roe v Wade for example. Even some of the most politically liberal law professors and scholars will just rip apart the legal reasoning in Roe. The majority opinion is really just a mess. Discuss this in legal circles, and it's no big deal. Say this in public or write this in public (like in a judicial opinion on the appeals court), and it's going to be horrible. You'll have people like that blubbering mess Ted Kennedy attacking you relentlessly. I think that Alito, like many other conservatives in the legal world, has learned to watch what he says. I guess we'll have to wait and see who is right.