Judge Easterbrook vs. the attitudinal model

At the Swarthmore commencement, Judge Frank Easterbrook explains why our Supreme Court would continue to generate many 5-4 cases even if all its members were appointed by a single President, and very many 9-0 cases even if its members were appointed by Presidents who were extremely different from each other politically. “In the United States, the Rule of Law really does differ from a Rule of Judges. Neutrality is a comfort to all who must stand before a court, and to all of us who favor equal justice under law.”


  • There is no doubt this is true. But the difference might be you would not see the split across ideological lines that you see now. I find 5-4 decisions that fall neatly along party lines to be quite depressing.

  • […] justices joined the majority opinion. That, too, is unremarkable, as I explain here, and Point of Law explained earlier at this link, contrary to the false conventional wisdom that depicts 5-to-4 […]