There is a point that I would like to make in order to correct a bit of a misnomer that continues to run through the mainstream media as well as the blogs. In regards to the monumental SCOTUS decision today to restore sanity back to our country's rule of law, the MSNBC states that, "The court's liberal justices were in the majority."
Well, not really.
Let's keep something in mind here, something that often needs repeating: 7 out of those 9 judges were nominated by Republican presidents. Granted, a couple of them did not turn out as planned to the Republicans (thank God), but that's a statement of fact. Furthermore, what's also known is that while Justice Kennedy is in the role of a swing-vote, he has a historical record of voting more often with the Conservative majority, as depicted by Chicago Law's Judge Richard Posner and William Landes in their paper, "Rational Judicial Behavior". They examined the votes of all justices from 1937 to 2006, and they examined where our current SCOTUS justices are with voting from either the conservative or liberal position, as well as their conservative rank out of 43 justices listed in that period (h/t to Dorf at MyDD):
RANK NAME % OF CONSERVATIVE DECISIONS
1 Thomas 82.2
3 Scalia 75.7
4 Roberts 75.3
5 Alito 74.0
10 Kennedy 64.7
29 Souter 37.4
31 Breyer 37.2
32 Stevens 34.1
35 Ginsburg 31.2
Justice Kennedy, ranked 10th on the Conservative list, is in the "liberal justices" crew? Right. Whatever you say.
Look, this guy started off in the mold of Rhenquist, and it appeared when he began his appointment as a SCOTUS judge that we were about to receive another Rhenquist clone. He has since dissented from that mold on a number of occasions, including the one issue of detainee rights in Guantanamo Bay. But he does not, by any stretch of the wingnut's imagination, deserve a "liberal" button on his robe. Keep in mind what was being said just a year ago:
It was a good year for the conservative bloc led by Chief Justice John Roberts. In 13 of the 24 cases decided by a single vote (one case was 5-3), the majority included the votes of Roberts along with Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito.
Six 5-4 votes could properly be labeled "liberal" victories, with the majority views favoring Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer and the ubiquitous Kennedy, who is considered the court's swing voter and power broker.
Five other 5-4 cases were divided in a mix of conservative and liberal justices.
"This has been the most overwhelmingly, consistently conservative term of the Supreme Court in recent memory," said Erwin Chemerinsky, a constitutional scholar at Duke University's law school.
"It's tempting to think of Justice Kennedy as the swing justice, but he really hasn't swung sides this term," Chemerinsky added. "With the rare exception, he's been with the conservative justices."
Admittedly I haven't examined most of the SCOTUS decisions of this year, but I'm willing to bet that Justice Kennedy has not swayed from the obvious trend of siding with Conservative judges.
One other thing to note, keep in mind that while he may be labeled as an "activist judge" by the nutbags on the Right, he certainly has good company:
We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.
Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %
Strange that.
Finally, a thought on labeling judges on one side or the other. Is the Constitution itself considered a "liberal" or "conservative" document? Personally I tend to believe it simply is what it is - a document that constructs and helps uphold our laws. If a judge correctly judges or votes in a particular manner that upholds our Constitution, does that really make him or her a "liberal" judge?
Or does that simply make that judge's decision a correct one, in of itself, to uphold the Constitution?