A profile In Courage

[Swaine, Edward]

Whether or not one finds the per curiam or Rehnquist opinions convincing on their merits, or finds them (or the dissents) consistent with the justices' prior philosophies, "courageous" seems to me to be the least appropriate description for yesterday's decision, for reasons that bear on subsequent posts attempting to find a bright spot in this whole mess -- or at least a symposium, which may or may not be a bright spot.

As to the original post, I'd supposed that those voting for the stay were virtually locked into this decision, unless they in fact had the courage to risk being remembered for determining the President based on a hasty legal mistake.  Maybe it goes without saying, but I also doubt law professors are a "powerful interest," or that the interests those justices might respect and privilege were somehow aligned against their decision.  One may also wonder at the courage exhibited in issuing a per curiam opinion under these circumstances, or the failure to order the entry of judgment ensuring the timely completion of the process (and the safe harbor) that supposedly demanded intervention in the first place.

The real lack of courage, though, lies in the per curiam's attempts to limit the force of its own reasoning. The opinion stresses that it is limited to "the present circumstances," in light of those mind-boggling "complexities" that equal protection cases present.  It deliberately invokes case law decided under extraordinary (and inapposite) circumstances.  It tries to claim that it was forced to intervene, therefore permitting it to claim discretion in future instances in which state courts have not already meddled with the elected branches of state government.  And the brevity and form of the opinion, and (here this gets overtly disputatious) the obvious poverty of its attempt to grapple with existing doctrine and the implications of its reasoning, virtually guarantees that this is one of those great cases that will immediately become unciteable, if that's a word.  Much of this case was about holding elections to standards that legislatures had previously established, and the prevailing justices here seem to be careful to establish no principles to which they themselves might later be held.

A final thought, which may already have been made: even if Gore's legal strategy had flaws, surely he was right in the debates in saying that the election was about  the Supreme Court, and who gets to select it?

Ed Swaine
Wharton School, University of Pennsylvania

-----Original Message-----
From: Rick Duncan [mailto:conlawprof at YAHOO.COM]
Sent: Wednesday, December 13, 2000 10:29 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: A profile In Courage


Admidst all the court-bashing and judge-bashing (and
whining) that we have been reading on the list the
last few days, please allow me to dissent.

I believe the Supreme Court's decision yesterday was a
true profile in courage. The Court put aside its own
short-term best interests (knowing full well that it
would be trashed by the law professor class and other
powerful interests), and made a courageous decision to
place fundamental fairness and the best interests of
the country and the electoral system in a position of
primacy.

I am very proud of the Suprem Court today. The rule of
law is the real winner.

--Rick Duncan

--- Paul Finkelman <Paul-Finkelman at UTULSA.EDU> wrote:
> Please Eugene, let's not get over emotional about
> this.   No one is
> suggesting that Scalia is a great murder (although
> his death penalty
> opinions might make him at least partially
> responsible to the death
> "actually innocent" person) or that he is advocating
> a Gulag.  My piont
> is simply that Stalin understood the nature of
> "counting" or "not
> counting votes," that the Scalia and company have
> learned that lesson
> quite well.  The  Court managed to delay the count
> in Bush v Gore (I),
> prevent the count from going forward in the stay,
> and now in II, turn
> around and say, "well, a count might go forward, but
> you are out of
> time."  Had the court been at all interested in
> getting a count, the
> court could have told the Fl. Sup. Ct. what to do in
> B v. G (I) or
> simply let the count continue and then say whether
> it had to be redone.
> But, it is quite clear the court had no interest in
> getting a fair
> count.  Thousands of votes in Florida were not
> counted.  The majority
> prevented that Count from taking place in order to
> guarantee the victory
> of the candidate of choice for the Court majority.
>
> We can now all write law review articles trying to
> understand the theory
> or logic of the result, and try to teach it, but the
> reality is, the
> theory is quite simple:  the court understood that
> if you don't let your
> opponent's votes count, then your guy wins.  That is
> pure Stalin.  That
> does not imply that Scalia and the majority are
> murderers, only that
> they are anti-democratic (with a SMALL "d") and
> thoroughly cynical in
> their role as jurists.
>
> --
> Paul Finkelman
> Chapman Distinguished Professor
> University of Tulsa College of Law
> 3120 East Fourth Place
> Tulsa, OK  74104
>
> 918-631-3706
> Fax 918-631-2194
>
> E-mail:  paul-finkelman at utulsa.edu
>
>
> Volokh, Eugene" wrote:
>
> >
> >
> >                 While I wasn't entirely persuaded
> by Howard Gillman's
> > critique of the Court's analogy to NAACP v.
> Alabama, I do agree that
> > one ought to be cautious in drawing analogies like
> that.  Even if the
> > cases are similar in some formal respects, when
> the background
> > circumstances underlying the cases are different
> enough, the analogy
> > does risk appearing "tone-deaf" to the reader.
> >
> >                 I wonder, then, what people who
> sympathize with
> > Howard's criticism think of the analogy of Justice
> Scalia to . . .
> > Joseph Stalin.  Shouldn't analogies to one of the
> three great mass
> > murderers of the century be just a *bit* more
> hesitantly drawn?
> >
> >                 Eugene
> >
> >
> > Paul Finkelman writes:
> >
> >      The only hard thing for us is that some of us
> will have to teach
> >      this stuff with a
> >      straight face, and try to figure out a "rule"
> or a "reason."   I
> >      am just thankful
> >      that the semester is over, and I will not
> teach con law this
> >      spring, so I do not
> >      have to try to convince students that we do
> have a rule of law
> >      and even a rule of
> >      reason.   This case reminds me of what Uncle
> Joe Stalin said
> >      about elections:  it
> >      doesn't matter who gets to vote, it only
> matters who gets to
> >      count the votes;
> >      this is something that Uncle Nino and Cousin
> Clarence clearly
> >      understand.
> >
> >
>
>
>
>


=====
Rick Duncan (conlawprof at yahoo.com)

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