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Had Bork or Douglas Ginsburg been confirmed, it is possible that Kennedy would have ended up on the Court anyhow—when Brennan retired and Bush 41 ended up picking Souter (who retired young and was replaced by Sotomayor). Had that occurred, Kennedy still would be around, but would be the fourth vote for liberals (or 6th vote for conservatives), and Robers would be the 5th vote. That would mean no Obamacare (Kennedy voted to strike it down, and it likely would have been struck down 6-3 since Roberts wouldn’t have wasted his time on his “tax” rewriting) just to have it struck down 5-4 instead of 6-3), and both laws limiting marriage to one man and one woman and laws prohibiting abortion would have beeb upheld. Thanks, Arlen Specter.

BTW, remember that lawsuit brought by the Arizona GOP Legislature to declare unconstitutional the state’s redistricting commission that had not been created by the legislature? I was very bullish on the legislature’s chance of success at SCOTUS, but sadly I now must predict that Ruth Bader Ginsburg will write the Opinion of the Court in that case, and that it will declare that when Art. I, Sec. 4, cl. 1 of the U.S. Constitution says that the “times, places and manner of holding elections for ... Representatives, shall be prescribed in each State by the legislature thereof” the word “legislature” means “the legislature plus any commission created by the voters via referendum against the wishes of the legislature.” Because, you know, the word “legislature” is “vague.”

The reason why I’m almost certain that Ginsburg will write the opinion is because she has not written any opinions from the February sitting, and the only other Justice not to have authored a majority opinion from that sitting (Kennedy) almost certainly had been assigned the opinion in Kerry v. Din but couldn’t get the other 4 to sign on to his opinion (which is why the case had a fractured majority, with Scalia writing for 3 Justices and Kennedy writing for 2 and concurring in the judgment). This really sucks; I was hoping for a big victory for conservatives in the AZ case that could lead to future victories getting rid of FL’s retarded “fair districts” constitutional amendment.

The Roberts Court seems to be becoming The Burger Court 2.0. During Warren Burger's tenure as Chief, he had been selected by Nixon because he had a reputation as a good conservative, and he was an abled administrator and public face of SCOTUS. However, rather than reverse all the liberal activist decisions that had occurred in the past (as Nixon hoped would happen once the court had a majority GOP judges), the court quietly let them stand and then began passing new "landmark" leftist victories like Roe v. Wade. Burger, while usually conservative, was no ideological strong-arm like his predecessor had been. The four liberal justices on the court stood firm and they were often able to sway at least 1 or 2 mushy conservatives to switch sides on key cases. Blackmun started off as fairly conservative, then went to the dark side during Roe v. Wade and never returned.

Roberts court seems very much headed in this direction during Obama's presidency. Only 2 of the conservatives (Scalia and Thomas) are unflappable, Alito usually joins them 90% of the time but lacks the same punch. Roberts and Kennedy are "conservative" on paper (Roberts moreso than Kennedy) but can be persuaded to turn traitor on "landmark" cases, resulting in 5-4 or 6-3 wins for liberals that set all kinds of horrible "precedents". The four liberals on the court (laughably portrayed by the mainstream media as "slightly left of center") give carte blanche to leftist causes in this country and usually stand together and share concurring opinions on every important case that has grave ramifications. We seem to have reached the high water mark for our side during the Rehnquist court. That was a majority conservative court that actually acted like it most of the time. It wasn't even much further right than the Roberts court, and its own share of plenty of 5-4 decisions. Ironically the court membership was 7 GOP - 2 RAT, but thanks to two horrible RINOs (Souter and Stevens), it might as well been 5 GOP - 4 RAT. Plus, prior to Darth Bader Ginsburg, Renquist/Scalia/Thomas/Kennedy/O'Connor could sway Democrat Byron White to their side on key cases.

The thought of Burger Court 2.0 is quite alarming for America. Burger Court 1.0. did an enormous amount of damage in the 70s while being a "conservative majority, strict constructionist" court on paper.