Thursday, April 24, 2008


There's a lot here that's defensible. But the idea that Bush v. Gore was not a political decision is based either on dishonesty, delusion, or some blinder-inducing cocktail that combines the two.*

*This thought violates the Eleventh Commandment of Legal Academia and Appellate Commentary ("Thou shalt not criticize Scalia"), which is fine. Let's stipulate that Justice Scalia is way, way smart. But (thus?) pretty much every single opinion he writes includes some degree of prestidigitation. And rather than admire that prestidigitation as part of academic intellectual calisthenics, shouldn't we call it out? At least every now and then?


Anonymous said...

Only if you're going to call out every Supreme Court decision that's ever been politically motivated -- what's your obsession with Bush v. Gore?

Terry Klein said...

For the last fifty years or so, just about every USSC decision has had political elements to it. To say that the one in which those elements were most nakedly apparent was not political strikes me as intellectually dishonest. The left wing of the federal judiciary is guilty of this kind of intellectual dishonesty, too. Not as guilty as the right wing of the federal judiciary, though.

Anonymous said...

It is not true that for the last fifty years or so, "just about every USSC decision has had political elements to it." There are plenty of boring subjects that the USSC addresses and many 9-0 decisions.

You're setting up a strawman by arguing against people who think Bush v. Gore is not a political decision. Of course it was, and so was Roe v. Wade. As for the comparative politics of the "left wing" v. the "right wing" of the judiciary, comments about who is more "guilty" reveal the bias of the writer more than they contribute anything to the discussion of the legitimacy of a judiciary with political wings, at all.