Rollin’ like a River

I’m surprised that Eugene Volokh is surprised that O’Connor and Breyer vote together 70% of the time, the 8th most common pairing on the court. Breyer–as was proved yet again in his appalling dissent inAshcroft v. ACLU–is the “liberal” most likely to roll over, especially on civil liberties cases. More broadly, O’Connor and Breyer have commonalities in many respects–not only are they the median votes, but they share a penchant for highly pragmatic, minimalist decisionmaking. It’s a logical pairing, which is only surprising if you’re determined to find “liberal activists” among Democratic appointees.

Volokh also makes a fair point about Thomas; whether or not it’s based in racist condescension, claiming that Thomas is merely Scalia’s handpuppet is empirically dubious as well. Thomas is quite odious enough on his own merits–that particular line of insult should probably be put to bed.