Bush v. Gore Rears Its Head: The Triumph of Politics Over Law (Part II)

Despite the changing winds of politics, the expansion of the voting franchise has been one of our most consistent trends since the birth of the Republic.
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Last week,

This article is the second in a series which began with . Part I argued that the Court's decision in Crawford v. Marion County (upholding an Indiana law imposing restrictions on the right to vote by adding new photo ID requirements) was jurisprudentially indefensible, a naked exercise of power by a Court that, across several contexts, appears to decide voting rights cases according to their partisan implications.

This article expands the analysis beyond voting rights,examining other recent decisions that rewrote longstanding constitutionaldoctrines while perpetuating racial marginalization, restricting reproductivefreedom, diminishing political equality and politically entrenching establishedclass interests. It also explores the limited comfort offered by the Court'soccasional willingness to check the Executive. The Court's elevation ofpolitics over law has eroded its own institutional legitimacy.

Part III of this series will explore the failures of traditional checks on the Court, as well as ethical lapses by some Justices, suggesting intervention by the other branches. Part IV will present a specific proposal through which Congress and the incoming Administration could balance the Court and restore the Separation of Powers.

Voting Rights and Political Participation: Reversing ourLongest Constitutional Trend

Despite the changing winds of politics, the expansion of the voting franchise has been one of our most consistent trends since the birth of the Republic. Whether through judicial rulings protecting voting rights, or constitutional amendments granting them to more people, democracy in America has steadily expanded: a system that initially included only white propertyholders now reflects broad popular inclusion with affirmative prohibitions on racial or gender restrictions.

On the one hand, many people (including half a million residents of the nation's capital) remain formally disenfranchised. And

On the other hand, the march towards broader participationhad long proceeded unimpeded – until the Roberts Court upheld Indiana'svoter ID law this spring. As the Senate Judiciary Committee heard from Stanfordlaw professor Pam Karlan two months ago, Crawford "may presage

Crawford was hardlythe first time the Roberts Court has contrived legal rules to advance the Justices' partisan political interests. In 2006, it upheld most of the League of United Latin American Citizens (LULAC) v. Perry

Nor was Crawford thelast such case. Only a few weeks ago, "[w]ealthy political candidates caught a break" when the Court in Davis v. FEC

Crawford, LULAC

As Professor Rick Pildes explained: "

The Justices' inconsistent willingness to take seriously their responsibility to protect voters from legislative self-entrenchment is problematic in the first instance. Even worse is the Court's seemingly consistent commitment to impeding democratic access and advancing plutocracy: Crawford

These political process cases, taken together, confer massive privileges to conservative political parties, candidates, and the particular political interests they (and apparently at least five Justices of the Supreme Court) share.

Social and Civil Rights: Covertly Turning Back the Clock

The trend towards politicized rulings extends beyond cases challenging the fairness and legitimacy of the political process. Last year, in the hot-button Carhart and Parents Involved

Parents Involvedprohibited public schools from pursuing voluntary busing in order to ensure racial integration — which Brown historically mandated over 50 years ago. While citing Brown v. Board, the Roberts Court eviscerated its holding and left Brown a doctrinally dangling shadow of its former self. As Justice Stevens wrote in Parents Involved

Carhart restricted reproductive freedom, in the greatest assault yet on the "undue burden" test announced in Planned Parenthood v. Casey in 1992 and

In each case, the Court preposterously claimed that its holdings — which contradicted the outcomes of the Brown

Its departure from principle and precedent did not gounnoticed. Professor Karlansuggested that the cases "

These cases represent the Court obscuring the impact of itsown rulings, perhaps to avoid political critiques by observers offended by theCourt's self-aggrandizement. Werelegal discourse more accessible to the lay public, the country would not standfor such intrusiveness. Putsimply, the Court appears to be leveraging the nation's lack of legalsophistication to covertly pursue an agenda that conservative legislatorsfailed to achieve politically.

Nor were these "hot button" cases the extent of the Court'sactivism. This Term, in District of Columbiav. Heller, the Justices radically rewrotethe Second Amendment, accepting — for the first time in theRepublic's history — a strained reading of the Constitution thateffectively prohibits efforts by local governments to ensure citizen safety byprohibiting the possession of handguns.

The ruling blatantly favors the conservative gun rights lobby and disregards the compelling
safety concerns of cities confronting violence
, in addition to centuries of established constitutional law that the decision reversed without even pretending to address.

Corporate Interests: Protecting Capital from PopularAccountability

As the Senate Judiciary Committee examined last week, othercases demonstrated theRoberts Court's extraordinary deference to corporate business interests.

Perhaps in reaction to Judge Posner's scathing criticism,the Court appears to have shifted under Chief Justice Roberts. The U.S. Chamber of Commercecharacterized the first Roberts Term as "

Two involved access to justice, precluding entire categoriesof lawsuits altogether: Stoneridge Investment Partners vs.Scientific-Atlanta Riegelv. Medtronic

The third case may be even more galling.

The fourth case, , may ultimately affect thelargest number of Americans. It effectively sealed the courthouse doors to plaintiffs subjected to

Ultimately, the political process cases are simply someamong many examples of the Roberts Court contriving legal principles to advancea conservative political agenda. The Court has been equallyaggressive — and ultimately political — when deciding casesimplicating social rights or corporate power.

Institutional Legitimacy: Judicial Restraint and thePolitical Question Doctrine

Throughout its history, the Court has abstained fromattempting to resolve questions outside its institutional ambit.

However, recognizing that the Court lacked the power toenforce its orders,

The "Political Question" doctrine reflects a similarrecognition of institutional real politik.It suggests against resolving contests where any decision would erode theCourt's legitimacy by appearing political, rather than principled.In 1962, Baker v. Carr

Ultimately, the Political Question doctrine aims to defendthe distinction between law (which Courts should address, given theirexpertise) and politics (in which judicial intervention is illegitimate sincelife tenure insulates judges from electoral accountability).

Judicial Aggrandizement vs. Democracy

In 2005, four years after

But the White House weathered an absent political storm,protected by the Court's activism on its behalf. According to Pulitzer Prize-winning journalist CharlieSavage, the Energy Task Force case presented

Some observers point to the detainee rights cases asdemonstrating the Court's ongoing willingness to check executive power.

Cases citing the political question doctrine, much like Bushv. Gore, the Energy Task Force case, or Crawfordv. Marion County, present few principles onwhich a decision can be based. Rather than a jurisprudential judgment based on the application ofpreviously articulated principles to their specific facts, each of these casescall instead for an essentially political resolution. Like the other election law cases, social rights cases like ParentsInvolved and Carhart

Part III of this series will explore the failures oftraditional checks on the Court, as well as ethical lapses by some Justices,suggesting intervention by the other branches. Part IV will present a specific proposal through whichCongress and the incoming Administration could balance the Court and restorethe Separation of Powers.

[1] See John Hart Ely, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 7 (1980) (observing that, "[e]xcluding the 18th and 21st Amendments...six of our last ten constitutional amendments have been concerned precisely with increasing popular control of our government."); Reynolds v. Sims, 377 U.S. 533, 555 n.28 (1964) (observing that "The Fifteenth, Seventeenth, Nineteenth, Twenty-third and Twenty-fourth Amendments to the Federal Constitution all involve expansions of the right of suffrage.").

[2] Justice Stevens voted with the majority in Davis, in a seemingly surprising vote explored at length in Part I of this series.

[3] FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2684 n. 7 (2007) (Scalia, J., dissenting).

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