As much of the media focused on the political farce that is Elena Kagan’s confirmation hearings (Republican senators took it as an opportunity to slam Justice Thurgood Marshall? Really?), I learned everything I need to know about Supreme Court politics from an Associated Press report on a recent court decision:
“In requiring CLS – in common with all other student organizations – to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations,” said Justice Ruth Bader Ginsburg, who wrote the 5-4 majority opinion for the court’s liberals and moderate Anthony Kennedy.
Let’s be clear: Justice Kennedy is not a “moderate.” He is in many ways a classic conservative. It’s just that he sometimes appears moderate compared to the activist, right-wing, wacko judicial philosophy espoused by his fellow Republican appointees.
And honestly, by historical standards, “the court’s liberals” really aren’t all that liberal either. Justice Breyer, now he’s a classic pro-business/civil-libertarian moderate, and even Justice Ginsburg, who is now the court’s liberal leader on social issues, is hardly such when it comes to issues of commerce.
Republican presidents succeeded in appointing perhaps the most conservative court since the Dred Scott decision. So please, let’s not water down the political significance of their accomplishment by attempting to define the justices’ true ideological leanings by comparing them to each other, rather than their predecessors.