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After Chief Justice Roberts switched his position on ObamaCare, the media has been hailing him as a new swing vote on the Supreme Court. But that would make him just one of many swing vote justices who were appointed by Republican presidents.
In the last forty years the majority of Supreme Court Justices were chosen by Republican presidents. Nixon alone nominated four Supreme Court justices and Reagan nominated three. But that did not turn the Supreme Court to the right, as the left claims. Not only have Supreme Court justices nominated by Democratic presidents moved to the left, but those nominated by Republican presidents have also often moved to the left.
When a Republican president chooses a nominee for the Supreme Court, there is at least a 50 percent chance that the nominee will move to the left once on the bench. Of the three justices nominated by Reagan, only one could be considered a reliable conservative voice. Of the two justices nominated by George H.W. Bush, only one, Clarence Thomas, could be considered a reliable conservative voice. It would not be surprising at all if this track record turns out to have held steady with the justices nominated by his son.
The same, however, cannot be said of the two justices nominated by Clinton or those two nominated by Obama. No one would ever accuse Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor or Elena Kagan of being promiscuous swing votes. Not when Sotomayor has voted with her Clinton administration predecessors 90 percent of the time. The liberal bloc of the Supreme Court has functioned as a steady voice for the left without the ire and accusations that the far more fragile conservative bloc has received for daring to occasionally defend the Constitution.
Conservative justices are expected to show their open-mindedness and integrity by voting with the left, but liberal justices are not told to prove their bona fides by voting with the right.
Liberal justices are praised for sticking to their principles while conservative justices are praised for abandoning theirs. The more consistently a justice votes with the left, the more consistently he or she is celebrated by the press. Justice Ginsburg, who votes furthest to the left of anyone in the court, is praised as a moral leader, while her counterpart, Justice Alito, is demonized for voting to the right. That sends the message that the only safe way to vote is to the left, which makes swing votes inevitable.
With a nine-member Supreme Court, five of whom were appointed by Republican presidents, a solid bloc divide would lead to a conservative court that upholds the Constitution. But the solid bloc divide has never existed, with justices from the right crossing the line to the left. After Justice O’Connor retired, Justice Kennedy became the swing vote to the liberal bloc. And on ObamaCare, when Kennedy chose to do the right thing, Justice Roberts became the swing vote.
With Kennedy and Roberts, the Supreme Court has two swing votes from the conservative bloc, but there is no corresponding swing vote on the liberal bloc. If the left had a majority on the Supreme Court, there would be very little chance that the progressive agenda would ever lose a case because its justices have shown superior voting discipline.
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