A Bigger Victory Than We Knew

Ronald Dworkin in the NYRB:

Just before the decision was announced, the betting public believed, by more than three to one, that the Court would declare the act unconstitutional.1 They could not have formed that expectation by reflecting on constitutional law; almost all academic constitutional lawyers were agreed that the act is plainly constitutional. The public was expecting the act’s defeat largely because it had grown used to the five conservative justices ignoring argument and overruling precedent to remake the Constitution to fit their far-right template.

The surprise lay not just in the fact that one of the conservatives voted for the legally correct result, but which of them did that. Everyone assumed that if, unexpectedly, the Court sustained the act it would be because Justice Anthony Kennedy, the least doctrinaire of the conservative justices, had decided to vote with the four more liberal justices, Justices Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. After all, since 2005, Kennedy had joined the liberals in twenty-five cases to create 5–4 decisions they favored, rather than joining his fellow conservatives to provide five votes for their side. Two of the other conservative justices—Justices Antonin Scalia and Clarence Thomas—had done that only twice, and the two others—Chief Justice John Roberts and Justice Samuel Alito—had never done so. So most commentators thought, from the moment the Court agreed to rule on the act, that the decision would turn, one way or the other, on Kennedy’s vote, and a great many of the hundreds of briefs submitted on both sides offered arguments designed mainly to appeal to him.