Jeffrey Toobin on the 10th anniversary of one of the worst Supreme Court decisions of all time:
[M]omentous Supreme Court cases tend to move quickly into the slipstream of the Court’s history. In the first ten years after Brown v. Board of Education, the 1954 decision that ended the doctrine of separate but equal in public education, the Justices cited the case more than twenty-five times. In the ten years after Roe v. Wade, the abortion-rights decision of 1973, there were more than sixty-five references to that landmark. This month marks ten years since the Court, by a vote of five-to-four, terminated the election of 2000 and delivered the Presidency to George W. Bush. Over that decade, the Justices have provided a verdict of sorts on Bush v. Gore by the number of times they have cited it: zero.
I actually think the decision was even worse that Toobin makes it sound. It’s true that the decision was “judicial activism” by any standard, but then the tradition of conservative “judicial restraint” that Toobin cites is just a myth; conservatives, over the history of the Supreme Court, have only shown restraint when greater activism would tend to lead to substantively liberal results (and vice versa.) If that was the only issue, it wouldn’t be a big deal; accusations of judicial activism just end in a poetic justice as fairness feedback loop. And even the sudden conservative embrace of an expansive conception of equal protection in vote counting wouldn’t be that unusual or especially problematic if they were willing to actually follow through and take the alleged new principle seriously. 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.
So, yeah, I’m never going to be over it.
…more on the Rehnquist concurrence here.