Justice Shaw

[Volokh, Eugene]

        Well, in fact, there were no "those" on the list who "so
energetically" pursued "the implied charge of illegitimacy" based on Justice
Shaw's position in the 7-0 Florida case, then I agree that they should
withdraw it.  Rick Duncan was, to my knowledge, the only person who even
took on the merits the view that the oath, *if* it was at it was reported to
him (which he consistently flagged as an unresolved factual issue), *may* be
problematic.  (Others who "so energetically" participated in the thread did
so merely to defend the propriety of the inquiry; I, for instance,
explicitly stated that on the merits I did not think that the oath was
indeed a problem.)  But if one reviews even Rick's posts -- which I have
just done -- I think one will find very little "energetic pursuit" of the
charge that the Fla. Sup. Ct. vote was evidence of illegitimacy, or even of
the notion that Justice Shaw's decisions generally were illegitimate.  I
would love to hear any quotes to the contrary, but at this juncture I don't
know of any.

        But beyond this, *even* if one were to argue that Justice Shaw's 7-0
vote, coupled with the oath, was evidence that Justice Shaw was (say)
improperly judicially activist -- an argument that I am *not* making -- his
vote in the dissent in the 4-3 case does not necessarily mandate a
withdrawal of that argument.  Are those who claim, based on (say) Justice
Scalia's vote in Croson or Shaw v. Reno or the state sovereign immunity
cases, that Justice Scalia is improperly activist, mandated to withdraw the
claim when faced with his many votes (e.g., in the Driver's Privacy
Protection Act case, in the recent Fourth Amendment case, and the like) that
may be described as non-activist?  I would assume the answer is obviously
no; one can be improperly activist (or whatever else) even though one does
not vote in a particular way 100% of the time.

        So it seems to me that, while one can certainly use Justice Shaw's
vote in this case as evidence for a variety of arguments, one will -- and
should -- wait a long time before people see it as a mandate for
"withdraw[ing]" any implied (or, more likely, inferred) suggestions based on
the Howard oath, or even based on the previous vote.

        Eugene



Garrett Epps writes:

> Justice Shaw, the lone Howard Law graduate on the Florida Supreme Court,
> dissented from the opinion ordering a recount.  I am waiting to hear the
> implied charge of illegitimacy withdrawn from those on this list who
> pursued it so energetically.
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20001210/8ed3c3e7/attachment.htm