Sherry Chandler

A lawless decision

Here is strong language from Anthony Lewis writing in the New York Review of Books onlline. The book is Jeffrey Toobin’s The Nine: Inside the Secret World of the Supreme Court. The subject is Bush vs Gore:

The Court found a denial of the constitutional principle of equal protection of the laws in the fact that counties were recounting votes in different ways. It was a decision that defied reason, since plainly the most equitable way to determine the Florida vote accurately was to recount it everywhere, not to stop where it was being recounted. It was also a decision without legal precedent. Justice Kennedy in his opinion said the legal reasoning was “limited to the present circumstances.” In other words, as another justice said years ago, the decision was like a restricted railroad ticket, “good for this day and this train only.”

In my judgment the Court did not even have legal jurisdiction to consider the case, because there was no federal legal issue. The Constitution leaves the counting of votes to the states, and a statute commits challenges finally to the judgment of Congress. Toobin describes the Court’s conduct as “inept and unsavory” and says the justices displayed “vanity, overconfidence, impatience, arrogance, and simple political partisanship.”

Was it pure politics? The justices may have reasoned to themselves, and believed, that they were acting in the national interest—to protect the country from being leaderless during a long election contest. But would they have come to the same conclusion if Al Gore had led by a few hundred votes and had sued to stop a Bush-sought recount? I doubt it.

The country quietly accepted the decision in Bush v. Gore, liking it or not. At the time I thought that was right. We have to be able to look somewhere for finality, and in our system that is the Supreme Court. Today I am not quite so sure. More vocal protest against a lawless decision might have been better for the country and the Court.

Also this:

Judging by what he has done on the Court, John Roberts is a committed legal conservative: not an originalist like Scalia or Thomas but someone determined to read the law and the Constitution to achieve conservative ends. But why would he be in such a hurry? One possible answer is that, given the makeup of the Court, he sees an opening right now to move the law toward what the conservative movement wants, in matters like abortion and affirmative action, and you never know whether that opening will last.

There is another possible explanation for the chief justice’s single-mindedness. He was a litigator in his legal life before he went on the bench, someone who (unlike most lawyers) argued cases in court. He was an exceptionally brilliant one. Litigators have to have a high level of competitiveness. They want to win. Everything they hear and learn is devoted to building their side of a case. They do not have the experience of an officeholder or legislator, who must listen to many viewpoints, or the reflectiveness of a scholar.

In the end the Supreme Court is what presidents make it by their appointments. The framers intended that: presidential appointment was the link of a remote institution to political democracy.

“Presidents pick justices to extend their legacies,” Toobin says. “By this standard, George W. Bush chose wisely.” Future presidents can include in their legacies a concern to rebuild the legal principles on which the Court based its decisions in such cases as Lawrence v. Texas and Grutter v. Bollinger. If we want a different Supreme Court, we have to pay attention to that issue in electing a president.

Possibly related posts:

SCOTUS Exxon decision

Intact Dilation and Extraction

Thoughts on Roe V Wade

Your Supreme Court in Action

Ruth Bader Ginsberg

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