Jeffrey Toobin said on CNN this morning what liberals keep saying: that with Scalia's death the U.S. Supreme Court is evenly split between liberals and conservatives. And since it is now evenly split, the decision of who to replace him with is a debate over the ideological balance of a currently balanced Court. And since Obama is president and the Constitution gives him the right to appoint justices, he's got the right to tip it any way he wants.
Of course, this is nonsense. There is no "balanced Court" now. This is a fiction being pedaled by people who themselves want to push the Court further to the left than it already is.
The Balanced Court Thesis is premised on the assumption that Justice Anthony Kennedy is a conservative.
This is the man who wrote the Obergefell decision which deprived states of the right to define marriage, a right they have always possessed and which was overturned in the face of countervailing precedent and on the absurd ground that the 14th Amendment required it. It was as politically liberal a decision as the Court has ever handed down. And it is far from Kennedy's only such decision.
The Court is not balanced 4-4, it is at least left-leaning and on many of the most important issues, it is imbalanced 5-3 in favor of liberals. Conservatives need to start pointing this out.