Dahlia Lithwick has this op-ed in the WashPost puzzling over the nonideological lineups this term:
Court watchers have stood dumbfounded all spring as the high court rejected and renounced the 5 to 4 conservative-liberal splits that seemed to have calcified after last term's bitter divisions. The end of June 2007 saw a full third of the court's cases decided by a 5 to 4 margin; as of this writing, the court has decided just four cases that way this year. At this point last year, Kennedy had cast his vote with the prevailing five justices every single time. But this term has seen a slew of ideology-busting unanimous, 7 to 2, and 6 to 3 decisions, which have not just baffled the experts but also made the usual end-of-term chatter about "activists," "minimalists" and "strict constructionists" sound as old-fashioned as the Bee Gees.
Excuse me, Ms. Lithwick, but nobody here at C&C is "dumbfounded" or "baffled" that the simplistic liberal-conservative model has broken down. (And personally, I never did care for the Bee Gees.)
As with Linda Greenhouse's earlier piece on the same subject, noted here, Ms. Lithwick goes through various possible reasons why the simplistic model has not predicted the results this time. Once again, all the reasons given have to do with strategy and dynamics of the liberals versus the conservatives. The possibility that these simplistic ideological labels do not fully capture a justice's views does not seem to occur to her for an instant. This would seem glaringly obvious in light of the Apprendi and Crawford line of cases, in which Justices Scalia and Thomas regularly vote for pro-defendant results. They do so because they genuinely believe in upholding the Constitution as they believe it was originally understood, regardless of how the chips fall on the conservative-liberal line.
Yet people who see the world in purely partisan terms apparently cannot bring themselves to believe that anyone does not see it in those terms. "There are none so blind as those who will not see."
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