The Myth of the Four-One-Four Split

Once again, the idea that every Supreme Court case presents us with two options, the “liberal” and the “conservative”, and the outcome is determined by which inflexible faction Justice Kennedy joins, comes up against reality, as manifested in Schwartzenegger v. Entertainment Merchants Association, and the jurisprudential individuality of the Justices. Justice Scalia hasn’t been in such form since Hamdi. Sadly, some of the “progressives” commenting at Volokh have something of a tin ear for his sarcasm. That’s OK. They can profess surprise later, and then promptly forget that they have done so.


One comment on “The Myth of the Four-One-Four Split

  1. Pliny the Elder says:

    I have pointed out many times that if one has the patience it is fun to sort through ethe5-4 decisions of the past 24 years and ask yourself if the world would actually be a better place if there were another Stevens (supposedly liberal) instead of a Scalia (supposed conservative). Off the top of my head the flag burning cases and thermal imaging search stuff are sufficient to make me appreciate Scalia’s efforts to be principled. (It does make it all the more disappointing when he is not.) Apprendi and its progeny as well as Hicks also make me appreciate him (though Stevens has been with him on some of that).

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