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“Credit” Where Credit Is Due


Speaking of new information in Supreme Court autobiographies, we know now who wrote the worst line in the second -worst Supreme Court decision of the century:

Thomas pretty much lets O’Connor off the hook for her shabbiest moment on the court — her decisive role in the 5-to-4 travesty that was Bush v. Gore. He even provides a mini-scoop of sorts when he reports that it was O’Connor who wrote the most shameful line in the majority’s unsigned opinion. The court’s decision, she wrote, was “limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” In other words, in a system that is supposed to establish and rely on precedent, this case would benefit only one person — the Republican candidate for president.

The inconsistency of the majority’s equal protection holding with the past jurisprudence of the justices would have been much less egregious had they been willing to establish a new standard going forward. Arbitrary vote-counting procedures and vote dilution are, in fact, a major problem that raise very serious 14th Amendment concerns! But of course not only did they not do that, the recount they ended up legitimizing was if anything more flawed on equal protection grounds than the one they stopped. Which makes the decision a monumental disgrace.

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