Hypocrisy, Attitudes and Politics

[Randy Barnett]

Ward Farnsworth wrote:

> The decision on the stay was 5-4, following the same
> fault line that runs through the Court's decision in most politically
> sensitive areas. I don't see why that should have happened; I don't see
> grounds in the judicial philosophies of the two sides for expecting the
> split to look like this.

This comment raises a different question for me.  Why no agonizing about the
evenhandedness of the 4 "liberal" justices and their commitment in this case
to principles of federalism and judicial deference to state courts?  Should
not any hypothetical inquiry itself be evenhanded?

Of course some on the list would be happy to conclude that they ALL are
acting politically in some sense of the word.  But at this point I would
prefer to entertain the suggestion of Cornell Clayton who I commend, not
only for HIS evenhandedness, but also for the interesting and plausible
explanation he offers for the varying behavior of the various justices and
courts.

Cornell Clayton wrote:

"3)  Is it possible to explain the 5-4 split on the USSC in the following
way:  Ideology infuses any conception of the law (how can it be otherwise?),
but not in the simplistic way that has been suggested  (i.e. Scalia wants
Bush in the White House so he votes to reverse, Stevens wants Gore so he
votes to affirm).  Rather, "liberals" tend to be more concerned about the
political principles of openness, fairness, social responsibility and
democracy -- hence, they believe (sincerely) that constitutional values must
support rules that count all votes regardless of legal technicalities
regarding the election procedures and regardless of whether individual
voters failed to vote the "correct" manner.   "Conservatives," on the other
hand, tend to be more concerned with the political values of order,
authority, predictability and individual responsibility -- hence, they are
concerned about any deviation from pre-existing standards in the election
and about allowing individual voters to escape from their responsibility to
vote properly.  Can this explain why the so-called "liberal bloc" is more
sympathetic to the Florida Court while the "conservative bloc" is not?"


Randy

__________________________________________
Randy E. Barnett
Austin B. Fletcher Professor
Boston University School of Law
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