(Fwd from Mark Graber) Re: The supreme court intervenes (or, the "rule of law indeed")

[Volokh, Eugene]

> ----------------- Original message (ID=FF21657E) (39 lines)
> -------------------
> From: "Mark Graber" <MGRABER at gvpt.umd.edu>
> To: <CONLAWPROF at listserv.ucla.edu>
> Subject: Re: The supreme court intervenes (or, the "rule of law
>       indeed")
>
> I rather expect a republican court will follow republican principles, so
> this decision aside, I'm not nearly as upset at Scalia for deciding the
> way he does, then Democratic Senators for not fillibustering his
> nomination to death.  But compare two ways the court might have
> intervened.
>
> 1.  What actually is happening.
>
> 2.  The Supreme Court stays out of the recount fight.  Gore appears to win
> the recount.  The Florida legislature nevertheless approves a Bush slate.
> Litigation results with the final result being that the Supreme Court
> affirms the legislative decision.
>
> While, as a signer of the Griffin letter, I think decision 2 wrong, I also
> think it far more consistent with the sort of principles the Court has
> been espousing the past ten years.  Defer to state legislature, rather
> than state judiciary in case of conflict.  Decision 1 sure looks like the
> sort of ruling on equal protection that the court rejects whenever
> liberals make the claim.  Put differently, although I think plausible
> arguments can be made for decision 1, they are the sort of arguments that
> do not seem to appeal to this court in many other contexts, which I do not
> think would be the case for decision 2.
>
> Mark A. Graber
> mgraber at gvpt.umd.edu
>
> >>> SLevinson at MAIL.LAW.UTEXAS.EDU 12/11/00 11:26AM >>>
> Not only is Earl Maltz entitled to take pride in his prescience.  I also
> have new respect for my colleage Lino Graglia, who has condemned judicial
> imperialism pretty much across the board (including attacking Lopez in the
> pages of The National Review).  There is much about which I continue to
> disagree with Lino, but he is far more principled that the current
> majority
> of the United States Supreme Court.
>
> sandy
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