Constitutional Law

Interesting thoughts on Supremes

Article here. Theme is that the Presidential candidates act as if the Court were composed of four minimialist conservatives (McCain's ideal), four empathic liberals (Obama's ideal) and Justice Kennedy moving back and forth, when it's much more complex than that.

"Court watchers have stood dumbfounded all spring as the high court rejected and renounced the 5 to 4 conservative-liberal splits that seemed to have calcified after last term's bitter divisions. The end of June 2007 saw a full third of the court's cases decided by a 5 to 4 margin; as of this writing, the court has decided just four cases that way this year. At this point last year, Kennedy had cast his vote with the prevailing five justices every single time. But this term has seen a slew of ideology-busting unanimous, 7 to 2, and 6 to 3 decisions, which have not just baffled the experts but also made the usual end-of-term chatter about "activists," "minimalists" and "strict constructionists" sound as old-fashioned as the Bee Gees."

Of course the article seeks personal or tactical reasons, rather than the simplest explanation: for some Justices, at least, history and the law are primary motivators, and liberal vs. conservative policy labels only fit in certain cases.

Full post as published by Of Arms and the Law on June 16, 2008 (boomark / email).