Swingers of the Supreme Court

What the total absence of a "swing vote" in the left-wing bloc of the Supreme Court says about the judicial body.

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.

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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