Bench Memos

Law & the Courts

The Left’s Phalanx on the Supreme Court

Back in 2008, the revered liberal philosopher Ronald Dworkin compiled a hysterical little book titled The Supreme Court Phalanx: The Court’s New Right-Wing Bloc. As I observed, “One need not wade far into the book to discover that Dworkin … is quite unhinged.”

As folks are increasingly recognizing, the real bloc on the Court—the group of justices who vote in lockstep in major cases and whom everyone expects to vote in lockstep—are the four liberal justices. As law professor John McGinnis puts it in a post today:

The story of this term has been a united block of the left on the Court, where Justices on the right were fractured. I have suggested that one important reason is that justices on the right take jurisprudence seriously, whereas the left are ideologically motivated. More evidence for this proposition comes from the observation that even when the right won, their justices often wrote separately. It is reason not result that counts for them. And this is as it should be: insistence on right reason affirms the rule of law. A focus on results is just about political power.

In contrast, when the left was in the majority, they tended to join opinions as one, even when they were as doctrinally unpersuasive as Justice Anthony Kennedy’s in the same-sex marriage case. The senior justice on the left boasted she kept her voters in line. Indeed the real division on the Court is between legalists of various kinds and ideologues of one kind.

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