Law and Politics on Conlawprof

[Howard Gillman]

Eugene is doing is typically terrific job at preventing the conversation
from spinning out of control.

But as we take his advice to heart I hope we don't make the mistake of
thinking that the only proper response is to calmly rehearse increasingly
innovative legal arguments.  While discussions along these lines have been
invaluable (and will continue to be of interest), I must say that (for many
of us) there is something surreal about proceeding on the assumption that
any of this has anything to do with law.

I'm sure I am somewhat disadvantaged as a political scientist, but it must
be proper to interpret this as pure politics.  I'm also sure that Sandy was
not alone in thinking immediately of Dred Scott.  (I also don't view the
mention of Dred Scott as at all inflammatory. For what it's worth, I think
the reputation that Dred Scott has among some normative constitutional
theorists is very ahistorical and inattentive to the ways in which the
political branches were trying to get the Court involved.  Analogizing a
decision to Dred Scott is simply not like calling someone a Nazi.)

I honestly -- and dispassionately -- think (at this time) that this
partisan intervention in the outcome of an election is, perhaps, the least
defensible, most unexpected, and potentially most institutionally-damaging
thing the Court has ever done.  The justices have always battled with the
other branches over control of policy-making; I consider that a basic fact
learned by every freshman who takes Intro American Politics.  But to stop a
state from conducting a manual recount in order to promote the interests of
a favored candidate is just, well, if not amazing, then at least the best
evidence in a long time for the Segal and Spaeth argument that Supreme
Court decision-making is pure ideological politics.

And since this argument is still THE most widely-accepted explanation for
the justices' behavior among most political scientists it must be an
acceptable part of this discussion.  Eugene will correct me if I'm wrong,
but I don't believe he meant to suggest that advocating this interpretation
of events is improperly inflammatory.

Howard Gillman
USC Political Science