All of this week's important rulings were decided by a single justice. Don't like that? Vote in the presidential election.
The story of this memorable United States Supreme Court Term, the most divisive of any I have covered, is actually a familiar story for court watchers. It's a story about the tyranny of the majority -- the power of the five over the four. It's a story about the difference between winning and losing, between making law and raging in dissent. Consider, for example, just the four big rulings the justices handed down this past week, the last week of their term, on cases as diverse as juvenile sentencing, immigration, health care, and military records.
Lawmakers pass the buck to judges and then rail at the judiciary for making a decision.
In each instance, the Court's conservative majority lost because Chief Justice John Roberts (in the Affordable Care Act and Arizona immigration cases) and Justice Anthony Kennedy (in the others) "crossed over" to deliver a result conservatives feared. But while the cumulative effect of the past 96 hours may be striking -- I mean, really, who had this Superfecta? -- it is hardly dispositive. Despite the week's rulings, the Court is still the most ardently conservative since the 1930s. Despite his curious vote for the Care Act, John Roberts still opposes progressive legislation. Each of the week's "victories" for progressive causes are laden with cautionary notes.
5-4 on Arizona. 5-4 on mandatory life sentences for young murderers. 5-4 on the federal health care law. 5-4 on the Stolen Valor Act. 5-4 on at least eight more decisions this term. There are many lessons in these statistics and in the hostile tones of the week's dissenters. Let me briefly raise one. The Supreme Court is in play this election season just as much as Congress or the White House. The Court is going to move in one direction or the other in the next five-to-ten years. Shouldn't we have an earnest national conversation about which direction we want to steer it?