I've been getting some feedback for my arguments that the Supreme Court is very partisan, mostly along the lines Jonathan Bernstein describes here:
I'm not sure I agree with him that the best way to think of Scalia-Thomas-Roberts-Alito is as simple partisans; I think there's a bit more going on than that. But I don't think it matters a whole lot what the lower courts do.
I wouldn't say we should think of the conservative bloc as "simple" partisans, they all have their ideological distinctions that lead them to think differently on many issues even when they ultimately agree with each other on the outcome of a case. But on the cases that matter to partisans, justices mostly rule how you'd expect them to. The Affordable Care Act is also a particularly partisan case, where the party that appointed a political judge is a pretty accurate predictor of how they'll rule.
I also say "partisan" because "conservative" and "liberal" have really lost all meaning in the context of judicial decisions. How much of the left looks at the court is often articulated through the judicial conservatism of the courts' retired moderate Republican appointees, who are in turn contesting the judicial activism of the court's current roster. The most laughable recent attempt to reconcile a conservative court supposedly disdainful of judicial activism with its taste for judicial activism came from George Will, who simply tried to invent a new term so Republicans would be able to tell the difference from the activism they're supposed to like from the activism they're supposed to hate.
As Linda Greenhouse wrote, even Justice Anthony Kennedy has found himself leaning right as of late.
He voted a total of 10 times with the conservative bloc in the 12 ideological cases. Compare that with the previous term, during which he gave the liberal bloc his vote in 5 of 17 close and ideological cases; during the term before that, 2007-2008, he voted fully half the time in such cases with the liberals. This term, it was only twice.
The conservative disdain for Kennedy hasn't changed all that much despite his growing more "conservative," because those few cases in which he does vote with the moderate wing of the court are enough to draw conservative ire. If any of the other justices were as "independent" on the relevant cases, conservatives would hate them too. But they don't. Because the other justices mostly rule how they'd want them to. The same, frankly, is true of liberals and the court's Democratic appointees.
