Another difference between the two men has emerged in Justice Alito’s willingness to break from his conservative colleagues on a small number of high-profile, freedom of speech cases.
“It’s clear to see where he is,” Mr. Sekulow said.
Particularly noteworthy, Mr. Sekulow said, was a recent decision in which Justice Alito was the only member of the court to say the First Amendment does not give an anti-gay group the right to protest at military funerals. Justice Alito previously found himself as the only member of the court who thought videos depicting dogfighting should remain illegal.
Mr. Stone, of the American Constitution Society, was far less flattering in his assessment of Justice Alito, who he said “seems almost off the charts in his seeming inability to follow settled law when it counters his gut sense of right and wrong.”
He called Justice Alito’s dissenting opinions in the cases involving the dogfighting videos, known as U.S. v. Stevens, and military funerals, known as Snyder v. Phelps, “virtually lawless.”
In the 8-1 decision written by Chief Justice Roberts, the high court upheld a lower court’s ruling to throw out a multimillion-dollar judgment that the father of a dead U.S. Marine from Maryland had won against the Westboro Baptist Church.
The group, which has staged more than 600 virulent protests at funerals of service members, says Americans’ misfortunes and tragedies are God’s punishment for a nation too tolerant of homosexuality.
Chief Justice Roberts wrote that the group’s protests are constitutionally protected and “such speech cannot be restricted simply because it is upsetting or arouses contempt.”
“On the facts before us, we cannot react to that pain by punishing the speaker,” the chief justice wrote in one of the year’s most anticipated cases. “As a nation, we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
Justice Alito wrote a blistering dissent, saying “our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.” He further wrote that Westboro Baptist’s attacks “make no contribution to public debate” and “allowing family members to have a few hours of peace without harassment does not undermine public debate.”
In such cases, Mr. Hume said, “Alito is emerging as a justice who is less libertarian than other justices in the conservative bloc, particularly on the issue of free speech.” While Justice Alito has begun staking out his claim, Mr. Hume said, Chief Justice Roberts legacy remains murky.
“It will probably take more time to discover what, if any, set of issues comes to define the Roberts Court,” Mr. Hume said. “At this point, it does not appear that Roberts has a clear agenda like his predecessor, Chief Justice [William H.] Rehnquist, who used his time on the court to redefine the balance of power between Congress and the states.”