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Equal Protection Runs Amok
Weekly Standard

JOHN J. DILULIO Jr.

Conservatives will come to regret the Court's rationale for Bush v. Gore.

By custom, U.S. Supreme Court justices end even impassioned dissenting opinions collegially with the words "I respectfully dissent." That's how three dissenters, Justices Breyer, Stevens, and Souter, all signed off in Bush v. Gore. But the fourth, Justice Ginsburg, closed her opinion with a cold two-word punch at the majority : "I dissent."

Cold but correct, because Justice Ginsburg's dissent is resoundingly right on law and precedent.

Yes, on criminal law and other matters, Florida's supreme court judges too often act as ultra-liberal, activist, self-appointed legislators. They did so in their initial, disgraceful 7-0 groupthink ruling on the state's presidential vote-count controversy. No, I wouldn't rather still be listening to people debating dimpled chads. Sure, I'm glad the Court ended the Florida follies, and doubly glad thatócued by Vice President Al Gore, who was supremely patriotic and gracious in defeat. Most Americans, including most of my fellow Democrats, now call George W. Bush our forty-third president-elect.

But still, to any conservative who truly respects federalism, the majority's opinion is hard to respect, and the concurring opinion, penned by Chief Justice Rehnquist and joined by Justices Scalia and Thomas, should be rejected in its entirety. The arguments that ended the battle and "gave" Bush the presidency are constitutionally disingenuous at best. They will come back to haunt conservatives and confuse, if they do not cripple, the principled conservative case for limited government, legislative supremacy, and universal civic deference to legitimate, duly constituted state and local public authority.

"In most cases," acknowledge Rehnquist, Scalia, and Thomas, "comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law." There are, however, "a few exceptional cases," and "this is one." Why?

Why, suddenly, do inter-county and intra-county differences in election procedures, which are quite common in every state, rise in the Florida case to the level of "equal protection" problems solvable only by uniform standards (by implication, uniform national standards) and strict scrutiny from federal courts?

How can the conservative jurists on the Court find prima facie fault with what the Bush legal team disparaged as "crazy quilt" local laws and procedures? Why, in any case, weigh the alleged problem in Florida without taking cognizance of how election procedures vary from polling station to polling station and from county to county in, say, Pennsylvania? And why, in reversing a state's highest court for not following the U.S. Constitution, and for infringing upon the state legislature's authority, does the nation's highest court substitute its own resolution of the ultimate "political question" for the Constitution's explicit, black-letter reliance on state legislatures and, if need be, the U.S. Congress?

Satisfactory answers are nowhere to be found either in the majority's opinion or in the concurring opinion. As each dissenting justice stressed, the federal questions that emerged from the Florida Supreme Court's 4-3 decision were simply not substantial enough, and the Florida majority's opinion by no reasonable interpretation renegade or recalcitrant enough, to warrant anything like Rehnquist et al.'s outright, roughshod reversal.

As Justice Ginsburg noted, the Court "more than occasionally affirms statutory, and even constitutional, interpretations with which it disagrees," even with respect to administrative agencies. "Surely," she continued, "the Constitution does not call upon us to pay more respect to a federal administrative agency's construction of federal law than to a state high-court's interpretation of its own state's law. And not uncommonly, we let stand state-court interpretations of federal law with which we might disagree." "The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: Federal courts defer to state courts' interpretations of their state's own law." And, even if this were truly an equal protection case, the Court's majority opinion needlessly substitutes "its own judgment about the practical realities of implementing a recount" for the "judgment of those much closer to the process."

I would like to believe there was a time when conservatives would have instinctively recoiled at the way we have all now fallen into thinking of and battling for the presidency as if it, rather than the Congress, were constitutionally the first branch of our national government. There was a time when conservatives understood that the localisms of little platoons and county governments were good and to be preserved and protected by law and custom unless proven bad by experience. There was a time when conservatives knew that legislators, our "partly federal, partly national" republic's "proper guardians of the public weal," as Madison described them not executives or judges were best able to decide difficult or divisive matters of great civic moment. There was even, I suppose, a time when conservatives would rather have lost a close, hotly contested presidential election, even against a person and a party from whom many feared the worst, than advance judicial imperialism, diminish respect for federalism, or pander to mass misunderstanding and mistrust of duly elected legislative leaders.

If there ever was such a time, it has now passed, and conservatives ought to do what they can to bring the country back to this future.

Regrettably, Bush v. Gore does no such thing. Desirable result aside, it is bad constitutional law.




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