Sports games are most exciting when they are close. Whether soccer, hockey, baseball or whatever, I am most engaged when the two competing sides are battling for victory to the very end.
It is not only that the games are most thrilling when the score is close, but the quality of the play is heightened. Closely matched teams bring out the best in the teams and individual players.
And so it is on the Supreme Court.
Just one day ago, Justice Anthony Kennedy announced that he would retire from the Supreme Court. Kennedy, appointed by Republican President Ronald Reagan in 1988, has been considered the most balanced of the justices. His rulings crossed between the court’s four more conservative and four more liberal voices. He was often the deciding factor in rulings.
The Supreme Court used to have more than a single ideological middle-of-the road justice. Justice Sandra Day O’Conner, also appointed by Reagan, had a balanced voting record between the liberal and conservative camps. During the 1988 to 2006 time period, Kennedy and O’Conner provided voices to both the liberal and conservative camps.
Today, the remaining balanced justice is Chief Justice Stephen Roberts, appointed by Republican President George W. Bush in 2005. While he was counted on as a conservative voice early in his tenure, the past few years have seen the Chief Justice side with both ends of the ideological divide.
Overall, American society and politics are very divided today. According to polls, both Democrats and Republicans have become much more extreme in their views. The Democratic party continues to lurch towards Socialism and anarchy, while the Republican party is advancing more conservative and nationalistic themes. It is through these extremists lenses that Americans look at the Supreme Court, and claim that the court has never been more polarized.
But in fact, the court has never had a narrower band of opinions than today. Only Justice Clarence Thomas is considered a far-flung Conservative, scoring above a 3 on the ideological metric in the chart above, the only Conservative justice scoring above a 2. Meanwhile, there are two liberal judges scoring above a 2, Justice Ruth Bader Ginsburg and Justice Sonia Sotamayor. The other justices are towards the ideological middle.
And I am happy about that.
As in sports, I believe that there is merit to a balanced approach in law. Opposing views bring out the best arguments, with each side refining the other. America’s legal system is best served when the balance of the court includes both liberals and conservative minds, weighing the law and society in its legal rulings.
Ronald Reagan, one of the greatest of the American presidents and the best of the modern era, gave the court a lasting stamp with two moderate conservatives and a brilliant staunch conservative mind in Antonin Scalia. As today’s court sits with an equal number of conservatives and liberals, hopefully President Donald Trump will take a similar path in appointing a moderate Conservative to fill the seat of Justice Anthony Kennedy, keeping the balance in America’s Supreme Court.
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