IT IS HOW THE MAINSTREAM MEDIA HAVE TAUGHT THE public to think about decisions by the current Supreme Court. And it is a conceptual scheme that makes it utterly impossible to understand either the Court's current makeup or its recent history. The Myth of Balance Between Left and Right holds that the Court has a "liberal wing," consisting of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, and a "conservative wing," consisting of Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito, and Clarence Thomas. Justice Anthony Kennedy is the swing vote, the "moderate."
It should be clear, right off the bat, that something is fishy about this picture. Cautious on the lower courts, Ginsburg and Breyer were prescreened by and fully acceptable to Republicans on the Senate Judiciary Committee. Both their votes and their opinions have been far more moderate than those of the great liberal visionaries of the Court's past, such as William O. Douglas and William Brennan. Souter is a Republican appointee. His approach to constitutional law is in the general mold of Justice John Harlan, the great conservative dissenter on the Warren Court. Stevens, also a Republican appointee, was a maverick on the Burger Court, far to the right of three of its members. Contrary to what you hear, Stevens hasn't much changed in the last decades.
Here's a simple way to expose the Myth of Balance. In 1980, when I clerked at the Court, the justices were, roughly from left to right, Brennan, Thurgood Marshall, Harry Blackmun, Byron White, John Paul Stevens, Lewis Powell, Potter Stewart, Warren Burger, and William Rehnquist. Believe it or not, this Court was widely thought to be conservative. But think, just for a moment, about how much would have to change in order for the Court of 2007 to look like the supposedly conservative Court of 1980.
First we would have to chop off the Court's right wing, removing Sealia and Thomas and replacing them with Marshall and Brennan. Far to the left of anyone on the Court today, Marshall and Brennan believed that the Constitution banned the death penalty in all circumstances, created a right to education, and required the government not merely to protect the right to choose but actually to fund abortions for poor women.
Next we would have to replace Kennedy with Blackmun. Blackmun was also to the left of anyone on the current Court. Fiercely protective of the right to privacy and opposed to the death penalty on constitutional grounds, Blackmun believed that the social-services agencies were constitutionally obliged to protect vulnerable children from domestic violence and that affirmative-action requirements were broadly acceptable.
Then we would have to leave Breyer, Stevens, Souter, and Ginsburg essentially as they are. All of a sudden, the four would be perceived as the Court's moderates rather than its liberals, operating as a group much like White, Stevens, Powell, and Stewart. (The parallel between White-Stevens-Powell and Breyer-Stevens-Souter is very close; true, Ginsburg is somewhat to the left of Stewart in many domains, but their voting patterns and general approaches are pretty close.)
Finally we would have to assume that Roberts would vote more or less like Rehnquist (which is to say, definitely to the left of Scalia and Thomas) and that Alito would vote more or less like Burger (definitely to the left of Rehnquist).
To say the least, all this would represent a radical change in the Court's composition--so radical that liberals cannot even fantasize about it. But this radically changed Court would be essentially identical to the supposedly conservative Court of 198o!
Here is another way to demonstrate the point. In 1980 Stevens often operated as the Court's median member; in many cases he (along with Powell) was the Justice Kennedy of that era. But Stevens is frequently described as the most liberal member of the current Court. …