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In this term’s 5-4 decisions, Kennedy joined the liberal bloc in five decisions. Each of those decisions marked a victory for the liberal bloc. But in only two 5-4 decisions did a member of the liberal bloc join the conservative bloc. Both of those cases involved the IRS. Breyer joined with the conservative bloc on United States v. Home Concrete & Supply, LLC, which gave the IRS slightly less leeway. Sotomayor joined with the conservative bloc for Hall v. The United States. But considering that Sotomayor wrote the majority opinion for the pro-IRS decision in that case, it is debatable whether she joined the conservative bloc… or whether the bloc joined her.
What is significant about these switches is their insignificance. Neither case set any genuinely important precedents. While Kennedy and Roberts “swung” on issues that had major implications, on the rare occasions that the left swung, it was generally on decisions with only a limited impact
Roberts and Kennedy both joined the liberal bloc in Arizona v. The United States, which threw out the rights of states to protect themselves against illegal immigration. They also joined the liberal bloc on United States v. Alvarez in throwing out the Stolen Valor Act and on Vartelas v. Holder. The closest thing to any similar liberal concession was the split liberal justice vote on Knox v. SEIU.
The double standard on bipartisanship from Democrats is that it only goes one way, whether in the House of Representatives, the Senate or the Supreme Court—the right is expected to move to the left, but the left is not expected to compromise by moving to the right or even closer to the center. The ObamaCare decision is an example of that same one-sided bipartisanship which celebrates liberal Republicans, but shows very little tolerance for conservative Democrats.
While the Supreme Court challenged and overturned policies implemented by the Bush administration on everything from the War on Terror to physician assisted suicide, it has done very little to challenge the power grabs of the Obama administration. After nearly a full term, the Supreme Court has managed to compromise its way out of confronting the unconstitutional actions of the Obama administration. Instead in cases like Arizona v. The United States and National Federation of Independent Business. V. Sebelius, it chose to hand narrow victories to the Obama administration by way of swing votes from conservative justices.
The myth of a right-wing Supreme Court can be seen in recent statistics which show that Kagan has been in the majority more often than Scalia and that on divided cases, the gap between majority status for the more conservative members of the court, Alito and Thomas, and between Sotomayor, is at ten percent. The justices most likely to be in the majority are the swingers, Kennedy and Roberts, who are far likelier to be in the majority than any of their more conservative colleagues.
This is not a right-wing court; it is a swinger’s court where the swing vote is everything. The swing vote is the deciding factor and it is also the ticket to earning the praise of the media and the cocktail party circuit. And despite the Constitution and the will of the people, the direction of the swing is to the left.
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