Still, Scalia is the most respected member of the Supreme Court. Both right and left wingers say he is brilliant, and that he consistently and coherently applies legal doctrines. Hardly any of the others get much respect.
InstaPundit and Juan on Volokh's blog seem to endorse this column suggesting that a recent 5-4 Supreme Court decision shows that the judges voted principles over politics in Bush v. Gore. The trouble with the argument is that the same 5 judges who voted for Bush are the ones who sided with the Minnesota Republican party. Cynics will say that they were just voting party preference again.
It is really a distortion to say that Bush v. Gore "restricted how elections had to occur." Bush v. Gore did not restrict elections at all. It only restricted a state court when it tries to redo the counting procedure after the election is completed. The decision left Florida completely free to hold its elections and counting procedures as specified in its statutes, and as administered by its executive branch. It did not even limit post-election trials over counting disputes, and did not reverse any trial court action or action by election officers. If anything, Bush v. Gore upheld Florida's right to hold an election according to its constitutional and democratically determined procedures. It only knocked out a partial manual recount scheme that was unilaterally imposed by the Florida supreme court.
The more recent Minnesota case is more of a free speech case than an election case. My previous comments are here. If there is a common thread between these two cases, I'd say it is in the view of the judiciary. The conservatives believe that the judges should just follow the law, and be accountable to the public for doing so. The liberals have a more activist and elitist view of judges. They believe that judges should be able to use their superior wisdom to rewrite the law as they see fit, and not be subject to the political checks and balances that plague other branches of government. Remember, Souter is the one who said he'd allow cameras in the court "over my dead body", so it makes sense that he thinks that judicial candidates shouldn't have to answer to the public.
Post a Comment