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Not wartime consiglieres


Remember when the Supreme Court made a critical contribution to the theft of an election with a wholly lawless opinion? Linda Greenhouse takes us down memory lane:

In the ensuing weeks, with the court in a monthlong winter recess, justices on both sides of Bush v. Gore fanned out across the world to reassure the public, and perhaps themselves, that normal life at the Supreme Court would resume.

“If you can’t disagree without hating each other, you better find another profession,” Justice Antonin Scalia told a group of law students in San Diego on Jan. 23. The justice, whose side had prevailed, assured the students: “Trust me, there was no bitterness at the court after the decision was made.”

Speaking at the University of Kansas on Jan. 25, Justice Stephen Breyer, one of the four dissenters, insisted that the decision had reflected neither ideology nor politics, but simply competing legal views. “When you’re talking about the judicial system, what you’re talking about is people carrying on a discourse completely informed and civilized,” he said. He quoted a statement that Justice Clarence Thomas, a member of the Bush v. Gore majority, made the day after the ruling: “I can’t remember an instance in conference when anyone has raised their voice in anger.”

And in Melbourne, Australia, Justice Ruth Bader Ginsburg, whom the decision had infuriated, adopted a measured tone in addressing a law school audience. “Whatever final judgment awaits Bush v. Gore in the annals of history,” she said, “I am certain that the good work and good faith of the U.S. federal judiciary as a whole will continue to sustain public confidence at a level never beyond repair.”

Sure hundreds of thousands of people all over the world are dead because of this stolen election, but the important thing is that voices were not raised in the Supreme Court cafeteria! Greenhouse leaves out the most instructive episode, Ruth Bader Gisburg letting Antonin Scalia — a gleefully nasty polemicist who had no compunction about denouncing the integrity of his colleagues at length in the United States Reports bully her into removing a footnote about how the court’s bad faith “equal protection” holding was particularly egregious given the widespread disenfranchisement of Black voters in Florida.

Anyway, this episode is a good illustration of why Ginsburg would refuse to retire strategically in 2013 — a decision that will lead directly to the end of reproductive for countless people, and very possibly the whole country before the decade is up — and why Breyer has looked at the aftermath and think things worked out great.

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