Judicial Activism for Me but not for Thee

Jeffrey Toobin on the tenth anniversary of Bush v. Gore:

What made the decision in Bush v. Gore so startling was that it was the work of Justices who were considered, to greater or lesser extents, judicial conservatives. On many occasions, these Justices had said that they believed in the preëminence of states’ rights, in a narrow conception of the equal-protection clause of the Fourteenth Amendment, and, above all, in judicial restraint. Bush v. Gore violated those principles. The Supreme Court stepped into the case even though the Florida Supreme Court had been interpreting Florida law; the majority found a violation of the rights of George W. Bush, a white man, to equal protection when these same Justices were becoming ever more stingy in finding violations of the rights of African-Americans; and the Court stopped the recount even before it was completed, and before the Florida courts had a chance to iron out any problems—a classic example of judicial activism, not judicial restraint, by the majority.

And here’s Lawyers, Guns and Money on same:

I actually think the decision was even worse that Toobin makes it sound.

SNIP

But not only, as Toobin notes, did the Court assert that the principle couldn’t be applied to future cases, the principle wasn’t even applied to the case itself. Based on the Court’s own reasoning, the count that gave Bush the presidency was just as defective from an equal protection standpoint as the recount ordered by the Florida courts. And then there’s also the fact that the decision was the end result of a Catch-22 created by the Court itself.

[Props=Lawyers, Guns and Money]

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