analogies

[Edward Hartnett]

Michael McConnell wrote:

. . .
The question is: what lesson can be learned from this? If the only answer is:
members of the list will defend the decision they agree with and attack the
decision they disagree with, then there is no lesson learned, and we should just
stop all the blather about the hubristic role of the Court in American life. If
everyone defends hubris in the cases where we agree, and only opposes hubris
where we disagree, then no one is really opposed to the hubris. We just disagree
about results.

________
As someone who (at least I like to think) objects to judicial hubris generally
-- whether in Adarand, Boerne, Bush, or Casey (and that only gets me to the
letter "C") --  is it too much to hope that Bush will be the case that leads
more people to give up on judicial supremacy?

The more I think about it, the more I think that the Bush case is rather
analogous to US v. Nixon.  While as a teenager I celebrated the Nixon decision,
when I began to teach it I found it virtually indefensible legally, and best
explained as a Court seeing where Congress was headed and getting there first --
"sparing" Congress from actually using its constitutional processes.  Isn't that
what the Court did the other night as well?   How likely is it that the Court
would have reached the decision it did in Bush if if Democrats controlled both
Houses of Congress?




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