“A 5-4 Conservative Majority”???

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.

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Law & the Courts

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