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Politics : The Left Wing Porch -- Ignore unavailable to you. Want to Upgrade?

To: Solon who wrote (4983)	7/4/2001 10:29:11 AM
From: Poet	Respond to of 6089

Seymour hare! That cannot be a real name. -g Here's a very interesting editorial written by Alan Dershowitz in today's NYT, concerning the fallout in the Supreme Court from our presidential election debacle: uly 4, 2001 Curious Fallout From Bush v. Gore By ALAN M. DERSHOWITZ AMBRIDGE, Mass. -- The final months of the Supreme Court term that ended last week brought a spate of unexpected decisions and unusual voting lineups. The decisions can best be understood against the backdrop of this term's most controversial decision, Bush v. Gore — the decision that handed the presidency to George W. Bush. The heavy criticism of this ruling as an exercise in partisan politics seems to have stung the court. In reaction, several justices may have tried to save their legacy and prove their nonpartisanship by moderating their views — which led to a term of unpredictable decisions. Suddenly this term, Justice Antonin Scalia abandoned his long-held disdain for privacy rights. In Kyllo v. United States, he wrote, in a 5-to-4 decision, that the police may not use a thermal imaging device that can detect marijuana growing in a home. This decision was especially surprising since this technology rarely intrudes on the privacy of anyone except marijuana growers, who use very high intensity lamps. Equally surprising in this case was the dissenting vote of Justice John Paul Stevens, who usually lines up with the court's liberals on criminal-justice issues. (The only predictable aspect of the Kyllo decision was that the majority was joined by Justice Clarence Thomas, who had expressed similar disdain for the privacy rights of likely criminals, but who almost always follows Justice Scalia.) Justice Stephen Breyer, who can generally be counted on to favor a strict separation of church and state, joined conservative justices in ruling that a public school must open its doors to after-hours religious activities, if nonreligious programs are allowed. The decision was a victory for a national evangelical Christian group that had wanted to operate after-school Bible clubs for students. And then there was Justice David Souter, normally sensitive to the need to control the discretion of police, writing a 5-to-4 majority opinion that sustained a full-blown discretionary arrest and search — handcuffs and all — of a Texas soccer mom, because her children were not wearing seat belts. Justice Sandra Day O'Connor, usually much more conservative in her rulings, wrote the dissent. As surprising as these votes and decisions may be, they all show a common direction. Bush v. Gore seems to have exerted a gravitational pull toward the center for at least some of the justices. Bush v. Gore was itself a stark example of unpredictability — at least if one looked to the precedents of the court and the prior opinions of the individual justices. If the 100 most experienced court watchers — conservatives, liberals and moderates — had been given a hypothetical version of the facts of the Florida election case a year ago and asked to predict how the justices would vote, few if any would have gotten it right. The decisions of the justices seemed to contradict their own prior opinions — and to many these decisions seemed more consistent with the justices' own partisan preferences. After the vociferous criticism of the justices — especially but not exclusively those in the majority — it is understandable that some might have been moved later in the term to take unexpectedly centrist positions. By making themselves less reliably predictable, they may seek to make their votes in Bush v. Gore seem less partisan. Another factor may be the rumored retirement of Chief Justice William H. Rehnquist. Some justices may be positioning themselves for this spot — knowing that whoever is nominated would probably face a protracted, partisan Senate hearing in which he or she would be expected to explain any extreme points of view. Indeed, Justice O'Connor has recently let it be known that now she is not planning to retire anytime soon, fueling speculation that she did not want her career to end on the heels of so questionable a ruling as Bush v. Gore. There were, of course, some entirely predictable elements in the voting patterns of the justices. As usual, Justice Thomas voted very often with Justice Scalia, and Justice O'Connor and Justice Kennedy were the swing votes in many close cases. Also, the trend toward closer scrutiny of Congressional legislation that impinges on state prerogatives — the so-called federalism revolution — continued unabated this past term. A 5-to-4 majority expanded states' immunity from federal power when it ruled that state employees cannot sue for damages for violations of the Americans With Disabilities Act. Nevertheless, this past term provided many unexpected results. And while we can never know for sure what motivates individual justices, it seems likely that the impact of Bush v. Gore was not limited to ending the Florida hand count. Alan M. Dershowitz, a professor at Harvard Law School, is the author of "Supreme Injustice: How the High Court Hijacked Election 2000."