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A steady stream of bitterly divided, 5-4 rulings is not what the Founders had in mind
Shortly after John Roberts became chief justice of the U.S. Supreme Court, he admitted concern that a steady stream of 5-4 decisions could undermine the court’s “credibility and legitimacy as an institution.” His fear was well-founded. Since then, the Roberts court has issued bitterly polarized, 5-4 rulings on its most controversial cases — including gun control, voting rights, affirmative action, campaign finance law, ObamaCare, and gay marriage. Justices in the losing faction, which swings from liberal to conservative depending on one swing vote, now routinely ridicule the reasoning of their colleagues — “legalistic argle bargle,” in the memorable words of Antonin Scalia. This is not, one suspects, what the Founders envisioned when they created the court to arbitrate and help temper what Alexander Hamilton called the…
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