This Supreme Court term will show bench lacks conservative majority
By Robert Natelson, opinion contributor — 10/20/18 12:00 PM EDT Some of the Supreme Court’s decisions this term will show why the media’s division of the justices into “liberals†and “conservatives†is deceptive.
If one wants to divide the justices two ways, it would be more accurate to distinguish them as traditional judges or liberal activists. Five justices decide cases more or less in the Anglo American tradition of judging. Their results are sometimes “conservative†and sometimes “liberal.†The other four justices reach liberal results more uniformly, even when that requires breaking the normal rules of judging. At one time there were Supreme Court justices whom you could classify as conservative activists, but this has not been true for many decades.
Even restated as “liberals vs. traditionalists,†the two-fold division is not really accurate. The liberals usually vote together, but not always: Sonia Sotomayor split with Ruth Bader Ginsburg this month in voting to keep the Supreme Court out of an election ID case. Elena Kagan and Stephen Breyer have shown themselves willing to join decisions the media calls “conservative†when the grounds are sufficiently narrow.
More importantly, the five traditionalists are deeply split among themselves. The divide is largely about how much weight to give to case precedent vs. the Constitution’s original understanding versus judicial deference to democratic legislatures.
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https://thehill.com/opinion/judiciary/412372-this-supreme-court-term-will-show-bench-lacks-conservative-majority
