Dred Scott and Bush (and O'Connor)

[Sanford Levinson]

Part of me thinks the comparison between Dred Scott and Bush is unfair to
Dred Scott, which I think was, in substantial respects (i.e., the Missouri
Compromise) either rightly decided or, certainly, easily defensible.
(Ironically, the attack on the Missouri Compromise depends on a plenary
power reading of Congress's power similar to the ostensible plenary power
of the Florida legislature to set aside the election and appoint its own
electors.  Neither one, I think, will withstand analysis.)  Another part of
me sees the analogy this way:  Dred Scott was, fundamentally, an attempt to
decide the election of 1860 by deligitimizing the platform of the new Party
in town, whose key issue was banning slavery in the territories.  Eliminate
that as an issue, and there is nothing left to the Republican Party (except
their attack on Mormon polygamy, but the Democrats agreed with that
attack).  Here, some of us believe, the Court made an entirely illegitimate
decision to decide who the new president would be, whether because of their
partisan commitment to George W. Bush; a sub-conscious desire to have him
as president that led them to credit his arguments more than Gore's; or a
megalomaniacal view that the country had "suffered enough" from the anxiety
of waiting to find out who won and the Court would supply a final answer
and bring the anguish to an end.

With regard to Casey, I believe that the only defense of that decision is
if one believes that Roe was rightly decided, in which case one should
agree with the dissenting opinions of Blackmun or Stevens.  The plurality
opinion is authoritarian in its argument, as is any purely precedent-based
argument.

Incidentally, I note that O'Connor, in her incomprehensible concurrence in
Helms--I am on record as agreeing with the Rehnquist-Thomas opinions in
that case, so far have I strayed from my original ACLU roots on the
issue!--was willing to say, first, that the aid represented only a "de
minimis" addition to the parochial-schools budget and, secondly and even
more amazingly, that she trusted Lousiana state officials to be good faith
monitors of the way that aid would be distributed in order to make sure
that it wouldn't go beyond the de minimis.  This represents one of the
all-time assertions of faith in the ability of state officials to apply
"standards" in a constitutionally tenable way.  Would that her
context-based particularism operated similarly in Florida.  But, of course,
with O'Connor one can never tell what the Constitution means from day to
day (except for the inability to comandeer state officials in any
circumstances) in the cases that actually come before the Court.  Without
actually wanting to engender a discussion of this topic at the present
time, I wonder how many people on this list, of whatever jurisprudential or
political persuasion (assuming that one can tell the difference) will miss
her when she tenders her resignation to the Republican President she helped
put in office who will, as per apparently her fondest desire, appoint a
Republican successor.

sandy