lessons of Bush v. Gore
Mark.Scarberry at PEPPERDINE.EDU
Fri Oct 4 15:30:09 PDT 2002
I don't know how Earl Maltz could have concluded from my post that somehow I
thought doctrine mattered because the court would try to preserve its
political capital. I did not say that and do not know what it would mean to
As I'm sure you all know, Bickel makes the point rather convincingly (in The
Least Dangerous Branch) that when doctrine would lead the court to destroy
its political capital then the court may justifiably try to find mootness or
nonjusticiability or some other basis for **avoiding** a doctrinal decision.
I made the point that Bickel's observation could apply here if doctrine
required a decision for the NJ Republicans. I went on to say that I thought
that, as a matter of doctrine, apart from any concern about political
capital, the Court would have no problem upholding the NJ S. Ct.'s decision.
The Court's 1932 opinion in Smiley v. Holm at least permits, and perhaps
requires, that decision. No one has yet commented on the applicability of
Smiley, and I would be interested in others' views on this point.
I thought at the time that the Court might take B. v. G. and rule for Bush
on the Article II issue. Partial evidence for that statement is my
Thanksgiving morning (2000) op-ed piece in the LA Times arguing that the
Florida Supreme Court had usurped the Florida legislature's Art. II power.
Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu
From: Earl Maltz [mailto:emaltz at CRAB.RUTGERS.EDU]
Sent: Friday, October 04, 2002 10:07 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: lessons of Bush v. Gore
I also was surprised when the Court took Bush v. Gore. If, as I expect,
the Court does not intervene in the New Jersey case, it should provide an
important qualification to the claim that Bush proves that "its all just
politics anyway." Certainly, when the political pressures are particularly
intense (as in 2000), the Court will often succumb to such
pressures. However, in other situations doctrine still matters--not
because, as Mark Scarberry suggests, the Court is trying to "preserve its
political capitol", but rather because the justices are, after all,
lawyers, who have internalized the ideological norms of the profession.
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