Will the Supreme Court be nakedly political without the skimpy string bikini that was Anthony Kennedy?

Lawprofs Lee Epstein and Eric Posner have a NYT column with the titillating title "If the Supreme Court Is Nakedly Political, Can It Be Just?" .

In the past 10 years, however, justices have hardly ever voted against the ideology of the president who appointed them. Only Justice Kennedy, named to the court by Ronald Reagan, did so with any regularity. That is why with his replacement on the court an ideologically committed Republican justice, it will become impossible to regard the court as anything but a partisan institution....

Republicans still can’t forgive President Reagan for appointing two moderates, Justices O’Connor and Kennedy, and President George H. W. Bush for appointing Justice Souter, who veered left.... Assaults on judicial independence are made easier when the public comes to view the judiciary as a political body. This risk, and not just the identity of the next justice, should be at the center of public attention.

The headline is cagey, with the use of the adjective "nakedly" and the verb "is." Consider the alternative "If the Supreme Court Is Completely Political and Looks Exactly Like What It Is, Can It Be Just?"?

With that change, which I've done to separate out independent propositions, the final clause doesn't work anymore. There's no musing over the meaning of justice worth doing. I'd want to change it to "If the Supreme Court Is Completely Political and Looks Exactly Like What It Is, Will the People Accept Its Exercise of Power?"

Epstein and Posner are concerned that when the Supreme Court splits 5-4, we will now, without Kennedy, always know who the 5 and the 4 are. Kennedy preserved a little mystery. He was the skimpy string bikini on the otherwise naked Supreme Court. But if this nudism analogy is any good, the Court will be less sexy when completely naked. That's what I've heard about nudist colonies. The skimpy bikini gets the mind churning away about the last little bits of unrevealed skin.

Without Kennedy, the political grouping of the Justices — appointed by a Democrat and appointed by a Republican — may feel quite dull and predictable. It won't be that these judges are just reaching policy outcomes and lying to us about law. Not all opinions will be 5-4, but when they are, it's because they're complicated enough to go either way, and intuitions about where the right answers are affect reasoning that is still creditably legal, especially to observers who want and need the Court to be a functioning part of our system of separated powers.

The naked Court will be political in a way that's as unremarkable as 9 middle-aged nudists sunning on lounge chairs by the pool.

"Centrists Should Mourn the Demise of the Filibuster: Only the extremists win—and in the end, mostly the Republicans."

A Slate headline, quoted in its entirety at Instapundit, as if he's not seeing the snark.

To see the snark, examine the logic

1. After the filibuster, only the extremists will win.

2. Most of the winners will be Republicans.

3. [Unstated.] Most of the extremists are Republicans. 

What counts as "extremism"? In this context, it has to do with how we think about judges. (And executive nominees, but I'll leave them to the side for simplicity's sake.) The "extreme" should be understood as the more ideologically slanted or threateningly powerful individuals that the President would otherwise have refrained from nominating. But even with the minority party disabled by the inability to filibuster, there are political constraints.

Obama can't just nominate, say, Bill Ayers.

"But it’s hard to imagine the NLRB or the Consumer Financial Protection Bureau as instruments of tyranny."

"Was it Hitler or Stalin who banned prepayment penalties for adjustable-rate subprime mortgages?"

"Is Harold Koh the Left’s John Yoo?"

One might well ask.

Lawprofs Jack Balkin and Eric Posner talk about what sorts of "policy views" Obama will try to "entrench" on the Supreme Court.

In this new Bloggingheads episode.

Obama might want ideological liberals -- right? -- but he doesn't really want judges who will rein in executive power, does he?



"Much of what the Obama administration will do in the area of executive power is just dial things back one notch."

Hmmm....



So, Obama will dial back to 10?