The Scaliafication Of The Supreme Court

Justice Antonin Scalia is not the most conservative member of the Supreme Court — that distinction goes to the only justice who has suggested child labor laws are unconstitutional, Justice Clarence Thomas. Yet he is easily the Court’s most strident conservative. When Justice Sandra Day O’Connor was the Court’s key swing vote, Scalia alienated her by writing that her opinions “cannot be taken seriously” and by attacking her “utter inconsistency.” Likewise, when current-swing vote Anthony Kennedy reached the obvious conclusion that it’s not the government’s job to tell you who you can have sex with, Scalia attacked his decision as “so out of accord with our jurisprudence–indeed, with the jurisprudence of any society we know–that it requires little discussion.”

Indeed, many commentators believe that Scalia’s stridency does more to undermine his ability to form a conservative majority than it does to aide it. O’Connor and Kennedy certainly didn’t like being attacked by their colleague, and his insults drove them right into the waiting arms of moderate Justice John Paul Stevens.

That is, until now. As Joan Biskupic points out, Scalia authored three of the Court’s most significant opinions this past term. These cases include the single most radical legal shift in the last year, a case called AT&T Mobility v. Concepcion that effectively immunizes corporations from consumer class actions:

Scalia has written several blockbuster majority opinions this term, suggesting that Chief Justice John G. Roberts Jr. trusts him to “hold five,” Biskupic says. At an ABA Annual Meeting program on Friday, Biskupic rattled them off. They include decisions:

If Scalia truly can be trusted to consistently “hold five” — a term that refers to his ability to keep the five justice majority needed to decide a case the way he wants it decided, than this represents a drastic rightward shift in the Court’s dynamics. For nearly 20 years, the only check on the Court’s right flank was the fact that its swing voters sometimes got spooked by far right’s aggression. If that is no longer the case, it can only mean many more decisions placing the desires of wealthy and well-connected interest groups ahead of ordinary Americans.