Most of the justices on the United States Supreme Court have been Republican appointees — elevated to the Court by GOP Presidents Reagan, George H. W. Bush and George W. Bush.
These include the recently deceased Justice Scalia as well as Justices, Kennedy, Alito, Thomas and Chief Justice Roberts. In fact most of the justices appointed over the last several decades have been Republican appointees. So, we can add the late Chief Justice Rehnquist, Justice O’Connor and Justice Souter to that last.
And yet, the Court remains divided and we see a stream of 5-4 decisions, some with a conservative majority and some some really big recent ones with a liberal majority.
Why is this so?
It’s because the Republican appointees to the Court don’t always vote along conservative lines. They stray.
Meanwhile, the Democrat appointees to the Court almost always vote as a block. They vote the liberal line. They don’t stray.
It’s funny then that conservatives are depicted as doctrinaire while liberal are shown as open-minded. This simply is not so.
Of particular interest within the Roberts court is the split between Roberts and the mercurial Justice Anthony Kennedy, appointed by President Reagan after two previous choices (Robert Bork and Douglas Ginsburg) were rejected by the Democrat-controlled Senate.
It’s no secret that Justice Kennedy longed to be Chief Justice upon the death of Chief Justice Rehnquist. But that was not to be as Kennedy was not a reliable conservative vote.
So, President Bush (in an effort to make a lasting impression on the Court) elevated the young[er] John Roberts to the Court and he was confirmed as Chief Justice.
In the beginning, Roberts and Kennedy seemed to get along, even though Kennedy must have been less than thrilled about being passed over for Roberts.
But in the last couple of years, Roberts and Kennedy have been at odds on some very important decisions.
For example, Kennedy voted to strike down Obamacare while Roberts (in a squeamish move that few could comprehend) chose at the last minute to basically uphold the law.
What’s more, in the two important gay rights decisions Kennedy and Roberts split again on striking down the Defense of Marriage Act (DOMA) with Kennedy joining the liberals and then on the California Proposition 8 case. The Proposition 8 case brought about a very unusual split. Chief Justice Roberts wrote the majority opinion, and he was joined by Justices Scalia, Ginsburg, Breyer and Kagan. Roberts said the plaintiffs did not have standing to bring the case and so Proposition 8 was effectively nullified, though not declared unconstitutional. The four dissenters were Kennedy, Thomas, Alito and Sotomayor — who all aid they would have decided whether Proposition 8 was constitutional. But they did not say how they would have voted.
It’s almost as if Kennedy has gone out of his way (especially on big, important cases) to take a course opposite that of the Chief Justice. In the definitive gay rights case (Obergefell) Kennedy not only joined with the liberal justices in casting the deciding vote but he also wrote the majority opinion.
Roberts has been inconsistent and Kennedy has moved more and more to the left.
Meanwhile, Ginsburg, Breyer, Kagan and Sotomayor have followed the liberal line — no defections.
Some people say that Kennedy is simply more a libertarian and less a conservative.
But we’re not buying that.
As we see it, Kennedy is more a contrarian while Roberts is someone who has not proven to be the leader and consensus-builder that many had hoped for. Roberts seems to be just another Justice rather than the Chief Justice that America expected and the Court deserves. And he often chooses to decide cases on what appear to be narrow and/or technical grounds. That’s the mark of a hair-splitter, not the mark of a leader.
And all this makes the selection of Justice Scalia’s replacement all the more critical.