Saturday, October 6, 2018


So now we have two aggrieved sexual abusers on the Supreme Court. Somehow one seemed sufficient representation.

Justice Kagan - how can she bring herself to shake hands with these guys? - is worried about what will happen to a Court without a swing justice.

A couple profs say not to worry: Roberts will step into the breach.

And, you know, he might. He already did once, in the Obamacare case in 2012, when Kennedy declined to take the job. Roberts stared into the abyss that we'd fall into if Obamacare were overturned, and he blinked. He refused to join Thomas, Alito, and Scalia in marching over the edge, and adhered to the liberals instead. There may be just enough of a patriotic conservative left in Roberts to refuse to go full Trumpian.

But it won't be enough. People forget that Kennedy hasn't always been the swing justice. In fact, there used to be many swing justices. The role was only pared down to one after the Bork nomination polarized the Court, and that one swing was O'Connor. In the Clinton years, the perceived balance was four liberals - Stevens (who'd been perceived as something of a conservative when first chosen in 1975), Souter, Ginsburg, and Breyer - and four conservatives - Rehnquist, Scalia, Thomas, and Kennedy. Then when O'Connor was replaced by Alito, Kennedy moved into the swing spot, but a more right-wing swing spot than her. Roberts will be more right-wing still, and while he may still save Obamacare, he's unlikely to save Roe, especially from incremental drip.

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