Our increasingly partisan Supreme Court

Conservative appellate judge Richard Posner, along with his University of Chicago law school colleague William Landes, underscored this point in a 2009 study. They ranked all 43 Supreme Court justices from 1937 to 2006 by ideology. None of the current liberal judges ranked among the five most liberal members of the court. Only Ruth Bader Ginsburg ranked among the top ten most liberal justices. By comparison, four of the five most conservative judges are currently on the court. Anthony Kennedy, traditionally considered the swing vote on today’s court, was ranked as the tenth most conservative judge…

The strong-conservative coalition has tilted most landmark rulings to conservative’s favor in recent years. Precisely for this reason, the rising rate of fragile high court decisions should especially concern conservatives. Studies show that 5-to-4 decisions are the most likely rulings to be overturned by later Supreme Courts.

But the deeper issue transcends any one case or court. The “supreme” authority of the high court rests on its legitimacy. The more absent consensus is from the high court, the more diminished its legitimacy and the more each decision will come to be viewed through a political lens.