Just finished reading Jeffrey Rosen’s indictment of the Supreme Court’s decision in Bush v. Gore in the new New Republic — a trenchant and devastating analysis of the court’s decision. I almost don’t recommend reading it. Because it’s hard to do so and not get even more outraged about what the Court conservatives did.
Rosen stops short of accusing the conservatives of purely political intent in deciding the case in the way that they did. He implies that they believed they were stepping in to end a galloping legitimacy crisis which was about to spin out of control. They were acting, he surmises, on a sort of subtextual ‘this has gone on long enough’ reasoning. So they abused their oath, but to serve what they believed to be a higher purpose.
I wonder if this is what Rosen really believes or whether he, perhaps rightly, stopped short of accusing them of narrowly political motives because of the impossibility of proving such an allegation, and the explosive nature of the charge. In any case, it’s a very good piece.
There is an interesting thread, or instance of crosstalk, running through the opinions which I haven’t seen noted elsewhere. In Rehnquist’s concurrence on page 4, in the course of justifying the Court’s obligation and power to overrule a state high court’s interpretation of state law, Rehnquist relies on two Civil Rights-era cases wherein the Court stepped in to shut down legal funny business perpetrated by segregationist state courts. Considering how many African-American voters had their votes thrown out in Florida and the â¦ well, less than civil rights-friendly jurisprudence of Thomas, Scalia and Rehnquist, this is more than a cruel irony. It’s more like sick humor. (See this article on Rehnquist’s early work as a Republican political operative assigned to harass African-American voters.)
And it’s a vicious irony not lost on Justice Ginsburg, who seems to have taken particular offense. “[T]his case involves nothing close to the kind of recalcitrance by a state high court that warrants extraordinary action by this Court,” Ginsburg writes on page 6 of her dissent. “The Florida Supreme Court â¦ surely should not be bracketed with state high courts of the Jim Crow South.”
I wonder if this was behind her sharp “I dissent” which she used to conclude her opinion instead of the standard “I respectfully dissent.”
She might also have noted another ironic inversion: In the cases cited in the Rehnquist concurrence, a civil rights US Supreme Court was stepping in to block the plainly injudicial acts of rogue Southern state high courts. In this case a rogue US Supreme Court was committing an injudicial act to block the efforts of a civil rights Southern state high court.
Now that’s progress!
P.S. I guess pointing this out would be too much even for Ginsburg. After all, dropping a “respectfully” is already pretty much their way of saying “Hey, You Wanna Piece a me?!”