Hi Bosco,
Here is yet another article on the "stoopid election", or rather, on the USSC:
newsobserver.com.
Point of View: As activist as they want to be
By GENE R. NICHOL
CHAPEL HILL -- Fortunately perhaps, most Americans don't study U.S. Supreme Court decisions. We
learn, instead, only that abortions are to be allowed, or that schools are to be desegregated, or that
presidents are to comply with subpoenas. But as the network news programs have amply demonstrated
over the past few weeks, some do make a habit of studying the work of our highest tribunal. For a good
many of them, Tuesday night's 5-4 decision stopping the Florida recount was, literally, shocking.
It's not that our Supreme Court is a stranger to wielding power. The Rehnquist court has typically been
quicker to strike down acts of Congress than most of its predecessors. But it has usually employed its
might in an effort to foster and protect state sovereignty. Academics have even discovered a name for it.
Justices Scalia, Rehnquist, Thomas, O'Connor and Kennedy are said to be the principal architects of our
"new federalism."
Under its auspices, for example, the federal Violence Against Women Act was invalidated because it ran
afoul of state prerogative. Justice Scalia took the lead in throwing out a key feature of the Brady Bill
because it is "essential ...to the States' retained sovereignty that they remain independent and autonomous."
Chief Justice Rehnquist led his colleagues in voiding a federal law making it illegal to possess a gun in
school because it interfered with states' rights -- though the Court had to reject 50 years of precedent to get
there. He also altered federal mandate to recognize that local officers cannot "be expected to predict the
future course of constitutional law."
Two years ago, Justice Thomas cut back a federal civil rights statute because state officers "should not be
inhibited by judicial interference (with their) traditional functions." Last year, Justice Kennedy broke new
ground to reject yet another federal law because "the States retain a residuary and inviolable sovereignty."
The "new federalist" majority was utterly "unwilling to assume that the states will refuse to honor the
Constitution or obey the binding laws of the United States."
No footwork is sufficiently nimble to square these defining sentiments with Tuesday's decision. The U.S.
Constitution assigns primary responsibility for the selection of presidential electors to the states. When
questions arise concerning the correct interpretation of local laws, it is the court's long-settled practice to
defer to the state's highest tribunal. Instances of the U.S. Supreme Court rejecting a state court's view of its
own law are exceedingly rare. In fact, as Justice Ginsburg put it in dissent, "federal deference to state high
courts' interpretation of their own law is ... the core of federalism, on which all agree." Still, the majority
opinion treated the Florida Supreme Court like a Jim Crow tribunal intentionally and disingenuously
manipulating its own rules. The "new federalists" turned their backs on the principal jurisprudence they
have constructed over the past decade in order to name a president.
While the justices typically laud judicial restraint, here they intervened aggressively in an arena beyond
their authority. While they have typically carved out new and inventive state prerogatives, here they
demolished old ones. While stays are usually granted to maintain the status quo until a decision can be
reached on the merits, here their sudden intervention effectively ended the lawsuit. And while these justices
are usually the very last humans to recognize novel constitutional restrictions upon state power, here they
employed breathtaking activism to plow new ground.
The decision in Bush vs. Gore is surprising. It is also remarkably demoralizing. I've studied the high court
for decades. I find it, alternately, frustrating and inspiring. On occasion it strikes what is best in our
national character. At other times, it seems to cast its gaze away from our most crushing problems. But, to
be candid, the justices are frequently more accurate at assessing what is in our national interest than I
would be.
The justices are ideological, even highly so. More often than not, that ideology is different than my own.
So I'm accustomed to disagreeing with our leading tribunal. But until this week I have never thought of the
Supreme Court as politically partisan. There's a good, and crucial, stretch between judicial ideology and
rank political favoritism. And the Supreme Court has a tremendously impressive record of understanding
the difference. The Warren court refused President Eisenhower's view of racial integration. President
Nixon's own appointees decided against him in the Watergate tapes case. President Reagan's court rejected
his position on abortion. And President Clinton's appointees voted against him in the Paula Jones case.
A partisan court, of course, is no court at all. It squanders public confidence in judicial decision-making
that it has taken generations to build. It betrays the greatest American contribution to constitutional
government -- independent judicial review.
It is impossible to understand how George W. Bush is worth this.
Gene R. Nichol is dean and Burton Craige professor of law at the UNC School of Law. |
