Editore"s Note
Tilting at Windmills

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September 18, 2003
By: Kevin Drum

JUSTICE DELAYED....I agree with Dan Drezner that Dahlia Lithwick has exactly the right take on the 9th Circuit Court opinion halting the California recall. In fact, this thought has been on my mind since Monday, but Lithwick expresses it both brutally and entertainingly. Basically, it's just payback for Bush v. Gore:

The real problem with [most media analysis of the decision] is that the high court expressly disallowed this kind of application of Bush v. Gore as precedent. With its now-famous disclaimer, "our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities," the court explicitly limited the reach of the equal protection application to the 2000 election. The Supreme Court, seeking to wade into a political catfight yet indemnify itself from ever having to do so again, insisted that their holding was good for one ride only.

....Reading the opinion, you can almost hear the panel saying: "Hey, let's not just halt this recall, let's have a little fun with the thing!"

....And theby my count12 references to Bush v. Gore often carry the deliberate leadup: "Hey! It's just like the Supreme Court said in Bush v. Gore." Now, maybe I'm wrong. Maybe the judges on the 9th Circuit haven't been lying awake at night, wondering when they might finally have revenge on the high court for years of abuse and disrespect.

....But none of these explanations really offers the satisfaction inherent in my hypothesis: that the panel stuck it to the Supremes because it could. Just like the Supremes threw the 2000 election because it could.

I think this is exactly right. The Supreme Court's egregious use of the equal protection argument in Bush v. Gore, and that fact that the majority obviously knew it was egregious since they tried to prevent anyone else from ever using it again, is the most obviously cynical part of the entire opinion. My guess is that the three-judge panel that wrote the recall decision wants the case to get appealed to the Supreme Court and wants to force those same justices to explicitly admit that their equal protection argument in 2000 was horse manure.

It won't happen, of course. Even if the case does go to the Supreme Court, they'll find a way to overrule without addressing the Bush v. Gore precedent. On the other hand, it will allow the minority on the court to say "I told you so" one more time....

Kevin Drum 10:21 AM Permalink | Trackbacks

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