In a story headlined: "Bad news for Obama: Conservative Justice Kennedy tells pals he's in no rush to leave Supreme Court," the New York Daily News reports that, according to unnamed friends and relatives of Supreme Court Justice Anthony Kennedy, the court's semi-official swing justice plans to stay on the court until at least after the next presidential election.

The sources are not identified and the justice isn't talking for publication so this is not exactly bankable, nor is it surprising. Kennedy turns 74 this month and seems healthy. As the swing justice, he is arguably (certainly?) the high court's most powerful member. Furthermore, Kennedy is a Reagan appointee who, as the Daily News mentions, tends to vote more often with the court's conservatives than otherwise. Why, one wonders, did the Daily News or anyone else think that Kennedy was looking to crate a vacancy that would enable Pres. Obama to appoint a fifth liberal and create -- for the first time since the Nixon administration -- a liberal majority on the court? I certainly wasn't thinking this was Kennedy's plan or desire.

I suppose the more troubling fact about the Daily News story is the thinking that underlies it, and that underlies that last sentence I wrote just above. I'm not trying to be naive here, just noting that in the big picture -- a picture that is admittedly full of fuzzy myths -- the U.S. system of constitutional governance depends to some extent on the public's willingness to believe that the Supreme Court plays a role outside of above issues of partisanship and ideology.

To the degree that we see justices as simply extensions of the party and the ideology of the president who appoints them, the strength of this belief must be shaken.

I must confess that I have to struggle to think something else. It seems that every time a case is decided 5-4, the same five justices are on one side opposite the same four. And now it seems that presidents, at least since Clinton, are nominating justices who are young, ideologically reliable, and perhaps have signed onto some unwritten rule that they will try to retire when a president of the same party is in office.

If you think this -- and I've just confessed that I have to struggle not to think it -- you owe it to yourself to read this long analysis of the court term that just ended. Titled: "Everything you read about the Supreme Court is wrong," it's written by Tom Goldstein, a top observer analyst of the Supremes on his SCOTUS blog. Goldstein sets up the stereotypes of a court that's divided between a narrow conservative majority that favors big business in all matters and a solid four-member liberal bloc that is obsessively sympathetic to criminal defendants. The Goldstein proceeds to take those stereotypes apart, based on the actual rulings of the term just ended. It's a long post, so for those who won't read the whole thing, here's a taste:

"...Each of those characterizations of the Court obviously has some support, but in reality each is in significant part a caricature designed to fit certain preconceptions.  In a term with roughly ninety decided cases, it is always possible to pick out a few examples to support almost any proposition.  But a fair review shows that the Term’s decisions, and the Justices themselves, were a varied and shifting mix.

Start with the Court’s ideological divide.  Although some cases are decided five to four, that’s less than twenty percent of the cases this Term.  Roughly half the decisions are nine to zero.  Only slightly more than one in ten cases involved the narrow liberal-conservative divide (fewer, if we don’t include cases in which we presume Justice Sotomayor would have voted with the left had she not been recused).

Though the Term ended (as it often does) with decisions decided along ideological lines, other five-to-four decisions that intuitively might have been decided on an ideological basis during the course of the Term were instead resolved by totally unpredictable alignments.  For example, the Court in Dolan v. United States broadly read judges’ power to order restitution (a “conservative” outcome) by a majority of Thomas, Ginsburg, Breyer, Alito, and Sotomayor, over the dissent of Roberts, Stevens, Scalia, and Kennedy.  (This was the exceptionally rare case of the five most junior Justices joining together against all their senior colleagues.)  Then Magwood v. Patterson broadly permitted a habeas corpus petitioner who prevails in a habeas petition to bring a new challenge to his subsequent sentence (a “liberal” result) in an opinion by Thomas (!) joined by Scalia, Stevens, Breyer, and Sotomayor, over the dissent of Roberts, Kennedy, Ginsburg, and Alito.  Thomas also wrote the defendant-favoring opinion construing the Speedy Trial Act in Bloate v. United States, over the dissent of Justices Alito and Breyer.  In Shady Grove Orthopedic Associates v. Allstate Insurance Co., the Court held that state law cannot block federal class actions (a pro-plaintiff result) in an opinion by Justice Scalia (!) joined by Roberts, Stevens, Thomas, and Sotomayor, over the dissent of Kennedy, Ginsburg, Breyer, and Alito.

It is certainly fair to say that some of the most consequential cases of the Term are decided by that narrow conservative majority.  Citizens United and McDonald fit that description, as does the attorney’s fees case, Perdue.

But it is inaccurate to describe the Court as methodically on the march to the right.  The ideologically confused majorities just described illustrate the point.  So do other decisions with a conservative orientation that pulled up well short of their farthest possible reaches.  Thus, the Free Enterprise Fund decision announced a critical proposition of constitutional law but left the PCAOB intact other than the relatively minor surgery of excising the “for-cause” removal provision of its governing statute.  McDonald did significantly change the understanding of the Second Amendment, but it’s far from clear that it will significantly affect states’ ability to regulate guns and gun possession.  Salazar v. Buono invalidated an injunction against the Mojave cross land-transfer statute (a conservative result).  But Justice Kennedy’s opinion for the Court, joined by the Chief Justice, permitted the plaintiff to continue to pursue his claim under the Establishment Clause on remand.  In Stop the Beach Renourishment v. Florida Department of Environmental Protection, the Court not only rejected a property rights challenge to a state beach-erosion statute (a liberal result), but Justice Kennedy also declined to provide a fifth vote for the proposition that a court ruling could ever constitute a “taking” of private property requiring “just compensation.”

Those more limited rulings in part reflect the fact that – contrary to liberal characterizations – the Court’s conservatives are far from monolithic and instead hold very diverse views about various provisions of the Constitution and the Court’s proper role..."

What think?