Why We (Should) Fight

In this thread, a commenter noted something I’ve written about before, one of the most disturbing aspects of the deliberations surrounding Bush v. Gore: Ginsburg’s retreat on a footnote criticizing the Court’s equal protection “argument” for overlooking the actual problems of racial injustice inherent in the various arbitrary inequities inherent to Florida’s voting system. Alas, it according to the Vanity Fair expose it didn’t take long for her to roll over:

As the drafts began circulating, tempers began to fray.
In an unusual sealed memo — an unsuccessful attempt to avoid the clerks’ prying eyes — Scalia complained about the tone of some of the dissents.

He was, he confessed, the last person to criticize hard-hitting language, but never had he, as the dissenters were now doing, urged the majority to change its decision based on its impact on the Supreme Court’s credibility.

He charged that his opponents in the case were inflicting the very wounds to the Court that they had supposedly decried.

As Jeffrey Toobin first reported, he objected in particular to what he called the “Al Sharpton footnote ” in Ginsburg’s dissent: her comment on Florida’s disenfranchised black voters.

Whether out of timidity, collegiality, or affection — Scalia was her closest friend on the Court — Ginsburg promptly took it out.

“It was the most classic example of what kind of bully Scalia is,” says one clerk, who called Scalia’s complaint “an attempt to stifle legitimate discourse worthy of Joe McCarthy.”

As for Ginsburg, this clerk says her response “showed a lack of courage.”

Frankly, I blame Ginsburg as much as Scalia. Scalia may be a bully, but the thing about successful bullying is that bullies generally have leverage. In this case, it was the dissenters who held the cards–the majority was deciding a Presidential election through an opinion that was a monument to bad faith (and Scalia, whose previous interpretations of the equal protection clause were so narrow that he doesn’t believe that gender discrimination should be suspect, was especially vulnerable on this point.) The majority had to count on the dissenters not exposing the full extent of the egregious contradictions and lawless unwillingness to apply the opinion’s stated principles even with respect to the case being decided, and Ginsburg was willing to go along.

Scalia’s invocation of Sharpton, of course, also exposes the invocations of racial color-blindness in his affirmative action opinions as the shallow opportunism they are, and also makes clear than attempts to portray Ginsburg as some sort of liberal firebrand are ludicrous. Could you imagine Scalia–the unfailingly collegial fellow who compared Ginsburg to the authors of Dred Scott and Korematsu (and isn’t the latter such Al Sharpton rhetoric!)–trying to pull that crap on William Douglas? As Bill James said about Billy Martin, you’d want to reserve the hospital bed in advance. Now, evidently, I wouldn’t want justices I generally agreed with to follow a Douglas model of collegiality over the long-term; if you don’t pick your spots, it’s counterproductive. The effects of strategy withing the court can be overstated, but obviously Brennan held a lot more coalitions together (although I certainly can’t imagine Scalia bullying him into removing the footnote–once he didn’t have the votes, he would write what he thought.) But if ever a case called for the most strident possible dissents, this was it.

A final thing to point out is that the article also contains some evidence that Kennedy’s extremely poor record of hiring female clerks may result partly because his clerks are rigorously screened for ideological correctness–something that paid off handsomely for Republican operatives in this case.