“A 5-4 Conservative Majority”???

by Ed Whelan

No matter how many momentous losses conservatives suffer in the Supreme Court, liberal commentators somehow persist in asserting, as Garrett Epps does in this essay, that “we have a Court with a 5–4 conservative majority.”

What we instead have, alas, is a Court on which, in 5-4 cases, Justice Anthony Kennedy is most often the decisive vote. Kennedy sometimes joins with the liberals and sometimes with the conservatives, but (as I discuss here and here) it is ludicrous to describe his general jurisprudential approach as conservative. In short, we have a very divided 4-1-4 Court.