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Want More Right-Wing Enablers Like Justice Scalia? McCain’s Your Man |
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I was intrigued to see Mike Stark’s post on Justice Scalia and deeply unimpressed when I read Justice Scalia’s recent and partisan remarks about the infamous Bush v. Gore decision. Aren’t conservatives the ones who always rail against activist judges blurring the line between law and politics? Scalia obliterated that line when he told people to “get over” the Bush v. Gore decision, morphing into a political hack who creatively argued that the real issue in the case wasn’t even that controversial.
Scalia’s words are better suited to Karl Rove than a sitting Supreme Court justice. Scalia was essentially spinning the decision, trying to tell Americans that it wasn’t even that close a case on the main issue. Sure, and the 7-2 Roe v. Wade decision was similarly no big deal.
Americans understand that the Bush v. Gore decision was nakedly political. The decision (which was 5-4 on the question as to whether an alternative recount method could be established in a timely manner) nearly led Justice Souter to resign from the Court–he believed the decision mocked our rule of law tradition. Similarly, Justice Stevens wrote in dissent that the loser in the decision was the nation’s confidence in the impartiality of the courts. Souter and Stevens, by the way, were both appointed by Republican presidents and are hardly wild-eyed radicals (though they find themselves on the left of this extreme-right court).
The Bush v. Gore decision absolutely reeks of politics. Justice Thomas’s wife was helping gather resumes for appointments to a “possible” Bush admnistration at the same time that Thomas was considering the case. Justice Scalia’s son was a partner in the law firm arguing Bush’s case before the Supreme Court. On election night, Justice O’Connor declared “this is terrible” when Florida was initially called for Gore–she wanted to retire, but wanted to do so with a Republican in the White House to name her successor.
Personally, I am over the Bush v. Gore decision in the sense that I realize it cannot be changed. But I will object to any revisionist description of the case, and I will object even more strongly to John McCain, who tells us he wants to appoint more justices like Scalia. The best way to avoid more decisions like Bush v. Gore is to elect Barack Obama.
I’ll quote another judge to offer a simple response to Justice Scalia’s spin: don’t pee on my leg and tell me it’s raining.
Totally something to worry about with McCain. If you think he’ll appoint “moderates” you’ve got another thing coming.
I remember in 2000 Ralph Nader said “there’s no difference between Gore and Bush”–the first thing I thought was–Supreme Court. There are currently 7 justices appointed by Rs, just 2 appointed by Ds. This is an extreme right wing court with young or relatively young right wing justices (Alito, Roberts, Thomas). If the Ds lose this election, I don’t really want to see what this Court will look like in the years to come. To say nothing of judges on lower federal courts…
ah…the smell of nnn..victory in the supream court..lol.my idiot meter is pegging this fine spring day..by nov. they will want to by pass reagun and put john boys head on a dime..you ready for the 2012 ride comming up?..poor john..his wife dosntn live with him unless he can move to a white house..that way she can make here 100 mill. into a thousand mill.and lieberman as his horse wisper’er..no john..shat not shit.
The “activist” court was the Florida Supreme Court which violated its own state’s laws (Section 102.111 of Florida election laws, if you’re interested.) Florida law, established by the Florida legislature (in accordance with the U.S. Constitution) before the election, was changed by the Florida Supreme Court after the election.
The US Constitution (Article 2, Section 1, if you’re interested) deems that the state legislature, not the courts, determines how electors are chosen. THAT is what the SCOTUS ruled on, 7-2.
thanks Kyle. My point is that Scalia is inappropriately entering the realm of politics by spinning the decision, the same way a political operative would. The S Ct ruled 7-2 that the FL S Ct’s recount method was inappropriate and then ruled 5-4 that there was not way establish an appropriate recount in a timely manner. There is ambiguity in FL statutory law as to how to conduct a recount, so it’s not as simply as turning to Art. II, sec. 1 of the US Const and saying “hey the state legislature decides this, not the courts”. That’s often the case with legal questions–constitutions, state or federal, don’t answer every question like a computer. Judges have to apply them and say what they mean. that is simply reality
bottom line is, as I pointed out, that this was a clearly political decision. There was nothing cut and dried about this case–it was a question of interpretation. Not surprisingly, the justices who who wanted to Bush to win made sure he did
Thanks for the courteous tone. You bring up multiple points.
1) Scalia was asked about the Florida decision, and responded. He defended the decision. Is that “spin?” How could he have responded — other than to say they were wrong — that you (and others who disagree with the decision) would not classify as spin? Your point is a constructed fallacy.
2) The SCOTUS ruling of 7-2 was that there were constituional problems with the Florida Supreme Court’s ordered recount based on giving more weight to one vote than another — violation of the Equal Protection clause — which is what Gore was asking for. The FL SC okayed a violation of the Constitution.
3) Every argument you bring about “politics influencing the court’s decision” is more easily applied to the Florida Supreme Court than the SCOTUS. Many court decisions involve interpretation, but without the FL SC’s warped judgments favoring Gore, the SCOTUS would never have become involved.
(1) The “spin” part was trying to pretend this was an easy 7-2 decision. Everyone knows the Court split 5-4 on a key question, and that the split was so divisive that one justice contemplated leaving the Court, as I noted.
(2) As I’ve tried to make clear several times, I am focused on the 5-4 ruling. I’ve explained this in several places so won’t go thru this again.
(3) I made specific arguments about 3 justices in the majority having serious conflicts of interest. Neither you, nor anyone, has responded to any of those arguments.
Sorry, going to have to disagree with you on this one. I am a law student currently, and let me tell you where you have gotten off the tracks on this one. I am no fan of the vast majority of Scalia’s opinions; that doesn’t mean he is wrong. Constitutional interpretation is not about finding answers you like, it is about what the constitution can support. I disagree with a heck of a lot of his opinions, but not this one.
The court to blame in this case was the Florida State Supreme Court. The issue of justiciability aside, the Florida Court really made a total hash of this case. First, they created a standard for review of voting procedure, which is clearly and explicitly delegated to the state legislature by the Constitution. About this, there is absolutely no argument. In other words, the Florida Court, in ordering a recount and making the guidelines for recount themselves, obviously and blatantly overstepped the bounds on court power as laid out in the constitution. If they had issued a writ of mandamus to the legislature requiring that they create a law about the issue, it may have been okay. But they didn’t. They came up with the test themselves. That is problem #1.
Problem number two was the nature of the test itself. The SC held, pretty validly, that the recount procedures violated the Equal Protection clause of the XIV amendment. Specifically, the guidelines allowed for ‘hanging-chad’ votes not to be counted, and considering that voting rights have been held as a fundamental right, with the review standard of voting right classifications being strict scrutiny, the court held that discounting such votes was a denial of E.P. to those whose votes were discounted.
I am sorry, my man, but just because this decision had extremely strong political consequences does not mean it was incorrect. Believe me, I am not thrilled about it, and, since I am an officer of the federal court system in addition to being a law student, I cannot really comment on my political affiliations. Suffice it to say, this is not my favorite decision. It doesn’t mean it is incorrect, however.
Holding Scalia responsible is just silly. SCOTUS corrected a serious error on the part of Florida’s highest court. If this decision bothers you, your beef is with the Florida Judiciary, not the Supreme Court. Just because this opinion was unfavorable for a great many people does not invalidate it. I refer you to Marbury v. Madison, Nixon v. United Sates, The Slaughterhouse Cases, and Casey v. Carhart. Separation of powers is fundamental to the way this nation works, and the Florida Court messed up bigtime, and the Supreme Court’s options were highly limited. It is an excellent case to teach to students, because it demonstrates very clearly the doctrine of sometimes needing to swallow the bitter pill and accept that what you think is ‘justice’ simply isn’t in the Constitution.
thank you Anon Law student. I hate to pull this out, but your condescending post forces me to mention that I’m a 1996 Harvard Law graduate who practiced in state and federal courts for nearly ten years.
Seven S Ct justices agreed that the FL S Ct “made a total hash of this case.” But, as I’ve tried to explain several times, the Court split 5-4 on the question of whether there was a way to conduct a constitutionally permissible recount as an alternative to the one the FL S Ct had devised. Your post only addresses the first question.
You say “Constitutional interpretation is not about finding answers you like, it is about what the constitution can support.” Of course, the key question is what the constitution actually “supports”. Terms like “equal protection” (and, in other contexts, free speech, due process, cruel and unusual punishment) don’t come with an instruction manual. The Constitution itself contains no instructions as to how it should be interpreted. Judges and courts make these decisions. In the Bush v. Gore case, 5 said there was no way to conduct a constitutionally permissible recount. 4 disagreed. As I cited in my post, 3 of the 5 justices in the majority had conflicts of interest, and 2 of the 4 in the minority felt the decision called into question our rule of law ideal.
I’m not the only one bothered by this decision–I guess you would also refer Justices Souter and Stevens to the cases you cite. I think they’ve all read Marbury v. Madison and the rest (as have I), and I’m not sure where it gets you to throw a few famous case names around.
Sorry, but the issue was NONJUSTICEABLE. PERIOD.
Can’t set that aside.
End of discussion.
PS Yale law school 1978
well, the Supreme Court didn’t agree with you, and 4 justices would have ordered a recount
Your argument is simply an unsupported assertion and, like all the others here, doesn’t respond to my points: (a) Scalia has inserted himself into political debate and (b) 3 of the justices in the majority on Bush v. Gore had conflicts of interest
and it’s “nonjusticiable” (though, again, the Court did not rule the case was nonjusticiable–and, again, has nothing to do with my points)