Another comment on Bush vs Gore

The difficulty, even the danger, is profound. It is embodied, after all, in that apparently harmless little shrug of a sentence about the decision being limited to the "present circumstances." If you once cede to the Court the power to decide elections, let alone even the power to halt counting of the votes, then you have ceded it everything. It is no use for the justices to claim that this case has no precedential value. The "just this once" promise is disingenuous on its face--especially in the "present circumstances." Every decision of the Court, under our system, becomes precedent; there is nothing to keep some future Court from responding in the same way, halting (on grounds of equal protection or whatever other specious grounds), in every county and in every state, a vote which displeases the majority of the Court. And there is no appeal.

This is by no means an unlikely consequence. What the Court says is the law is the law, until the Court itself says otherwise. The only leash on the Court, until now, was the Court's own history--its continuity as an institution that relies on precedent, reasoning, good faith, tradition, and its place among the three branches of government and within the federal system. It has now, with every affectation of helplessness, slipped that leash. There is no explanation in Bush v. Gore that can fit within the function of the Supreme Court, no rational explanation of this arbitrary exercise of power, in the language that the Supreme Court has always used to explain what it does. And all those affectations of helplessness--what it was "compelled" or "forced" to do, those "unsought" responsibilities it "could not abdicate"--were coupled with expressions of immense self-satisfaction.

There seems, really, no question about it. This is a turning point. Not because of its effect on this election or on the status of the Court or on the people's trust. Least of all was it a simple matter of choosing between two candidates in a close presidential election. Almost all the books, articles, and commentaries about it have, in one way or another, been useful--particularly Bush v. Gore: The Court Cases and the Commentary, in that it includes so many of the actual court decisions. Most critics speak of damage to the Court itself; most supporters speak in terms of excusing little faults, in view of what they seem to regard as a rescue of the system from "chaos." Almost all speak as though there were some continuity between this decision and the entire history of the Court. But there is no continuity. The legacy of this Court is disaster--which no façade of collegiality, or relatively cuddly subsequent decisions, can conceal or rectify.

thanks to red rock eaters digest