The Nino Who Said "NI!"

Image hosting by Photobucket

The rule of law? Vaffanculo!

Between Scalia’s recent civility and judicial conduct issues and attending this excellent (if depressing) conference last Friday I was reminded of my favorite assessment of Bush v. Gore, Kim Lane Scheppele’s “When the Law Doesn’t Count: The Rule of Law and Election 2000.” It does a marvelous job of analyzing all of the legal issues, as well as adding interesting comparative perspectives. It’s all worth reading if you’re into this sort of thing, but a couple of points are worth extra emphasis. One of the countless ways in which the decision was utterly lawless that I haven’t mentioned was the obvious Catch-22 the Supreme Court presented the Florida courts with. The Court ruled that the recount ordered by the FSC violated equal protection because the recount didn’t have a uniform standard; and, of course, the recount didn’t have a uniform standard because the Supreme Court told the Florida courts not to use one. As Scheppele points out, to be engaged in this kind of gamesmanship is not be meaningfully engaged in “law” at all:

The U.S. Supreme Court majority in the story of the 2000 election seems to have taken its inspiration from the Knights Who Say NI! in the Monty Python version of the Arthurian legend. Dressed in dark uniforms and towering above the petitioners who came before them, the Justices of the Supreme Court possessed the magic words that, when shouted in chorus, caused those who needed their permission to proceed to cower before them. For it was by pronouncing the magic words that the Supreme Court Justices could cause the most self-confident pretender to the throne to slink away. And, as in the standard fairytale, the Court could set a challenge for the pretender to the throne who, if he met the challenge, must be allowed to get what he sought. The majority’s reading of the fairytale requirements, however, follows Pythonesque conventions rather than the standard ones, and it deviates substantially from what the emerging comparative constitutional standard for rule of law would require.

Between Bush v. Palm Beach County Canvassing Board (the protest phase case) and Bush v. Gore (the contest phase case), the Supreme Court turned itself from the Knights Who Say NI! into the Knights Who Go Neeeow … wum … ping!, no longer “contractually bound” to be satisfied by a litigant who met the challenges that were set originally and who was therefore looking to pass. Transforming itself into the Knights Who Go Neeeow … wum … ping!, the Supreme Court had other ideas. In its new guise, instead of being satisfied by a shrubbery brought before it designed according to their initial request (a solution crafted under a literal reading of the Florida statute), the majority insisted on a new shrubbery with a totally different design (federal constitutional equal protection analysis rather than the literal wording of the Florida statute set the standard). New magic words were necessary to pass through this part of the dark forest of the law, except that the Knights had obviously tired of the game and so simply declared it over.

What is wrong with this, on a rule-of-law account? A great deal, but let me concentrate on two things in particular:

(1)The Whipsawing Problem: There was an apparent shift in the legal frameworks that were found to be important as one case followed another, leading to a sense that the applicable law was not stable and making it very difficult for anyone to orient their conduct in light of the law either before, during, or after the sequence of litigation.

Page 1 of 2 | Next page