Commonweal on Alito

In addition to a book review (by me) of three new law-and-religion books, the current issue of Commonweal has this reasonable, sober editorial, "Alito & Armageddon" about Judge Alito's nomination and the state of things on the Supreme Court.  (I admit, though, that I could do without the scare-quotes around the word "originalist.")  One minor slip -- the editors ask:

Will he be a radical in the mode of Antonin Scalia and Clarence Thomas, both of whom can be described as “activist” justices eager to overturn much of the Court’s recent jurisprudence?

The claim is no more true for being often repeated -- It is simply false that Justices Thomas and Scalia are "eager to overturn much of the Court's recent jurisprudence."  They are (Thomas more than Scalia) willing to consider overruling (a few) wrongly decided cases, but there is nothing particularly "radical" about that.  The editors make a good point, I think, when they state that "[e]xcept in the most exceptional circumstances, the Supreme Court best serves the nation and justice by moving the law by degrees rather than turning established practice upside down."  Still, it is simply not the case that a decision like Lopez (often cited as "activist" by critics) comes even close to "turning established practice upside down."  What's more, when it comes to cases that badly misinterpreted the Constitution (e.g., Roe), as opposed to statutory-interpretation cases, it would seem that stare decisis concerns should not foreclose reconsideration and correction.