A MOST CYNICAL...

A MOST CYNICAL APPRAISAL. Nothing if not shameless, rather than letting his appalling behavior in 2000 lie in dignified silence, Antonin Scalia has decided to speak on the issue again:

Georgetown students attending the lecture had questions not only about Scalia�s views on education, but on hot topics such as the sale of medicinal marijuana, campaign finance reform and censorship of high school newspapers.

One student asked whether Scalia believed the 2000 decision in Bush v. Gore was an example of judicial activism. In its 7-2 ruling, the court effectively halted the recount of presidential ballots in Florida, resulting in the nomination of George W. Bush as president.

"My first response to that question always is, it's six years ago. Get over it!" Scalia said. He then explained that "It surely is not activist to apply the text of the Constitution, which is what the court did." [bold added]

First of all, Bush v. Gore was a 5-4 decision. No dissenter joined any part of the per curiam opinion or concurring opinion, including its equal protection analysis. Period. Full stop. The end. (Indeed, the equal protection arguments raised by two dissenters could not have been the same as ... whatever the majority's analysis was, because under the Breyer/Souter approach the decision upheld by the court was just as problematic as the one it replaced.) The fact that this lie has been so durable -- up to and including the casebook I used to use -- also reinforces my belief that Souter and Breyer erred greatly in not withdrawing their dissents when it became clear that the majority was not acting in good faith.

As for Scalia's claim that he was merely "applying the text of the Constitution," as a particular Justice once said, this is really more than one should have to bear. It would be implausible enough to claim that the text of the 14th Amendment made the use of different standards in the particular case of Florida 2000 -- but apparently not any of the other equally arbitrary different counting standards used in American elections -- unconstitutional. But it's particularly ridiculous coming from somebody so committed to a claim that the equal protection clause should reflect "those constant and unbroken national traditions that embody the people's understanding of ambiguous constitutional texts" that it shouldn't even make gender discrimination constitutionally suspect. (I must have missed that unbroken American tradition of uniform national election standards.) Nor can the text of the constitution explain why the Court was so unserious about its stated rationale that it wasn't willing to apply a logical remedy within the case itself. And as for the Rehnquist concurrence, the claim that the justices were merely applying Article II of the Constitution is even more specious. Courts construe legislative enactments; that's their job. I am very skeptical that a state court's interpretation of state law can ever be said to not constitute jurisprudence at all merely because a federal court disagrees with it. But I am certain that if there was such a case, it could not be one where the state courts were applying vague legislation that specifically delegated power to the courts to resolve election disputes, and where the court applied its standards consistently enough that Bush -- allegedly the disfavored litigant -- won 3 out of the 5 2000 election disputes. The Supreme Court is far more vulnerable to charges of lawlessness than the Florida courts.

Scalia's public arrogance has always been an annoyance, but as he continues to defend the indefensible it's absolutely intolerable. Nobody who signed Bush v. Gore is ever in a position to lecture anybody about textualism and constitutional traditions. And as long as these justices are on the court, nobody should "get over it."

--Scott Lemieux

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