Tuesday, August 15, 2006

An inconvenient ruling

By Creature

Bush v. Gore, lost in the black hole of history. This from today's NYT:

The ruling that stopped the Florida recount and handed the presidency to George W. Bush is disappearing down the legal world’s version of the memory hole, the slot where, in George Orwell’s “1984,” government workers disposed of politically inconvenient records. The Supreme Court has not cited it once since it was decided, and when Justice Antonin Scalia, who loves to hold forth on court precedents, was asked about it at a forum earlier this year, he snapped, “Come on, get over it.”

One of the most decisive and divisive cases in the history of this country and Justice Scalia wish us to, "Come on, get over it." However, as Adam Cohen explains, we should not get over it. At its heart the Bush v. Gore decision can help. Read on.

The majority reached its antidemocratic result by reading the equal protection clause in a very pro-democratic way. If Bush v. Gore’s equal protection analysis is integrated into constitutional law, it could make future elections considerably more fair. [...]

If this equal protection principle is taken seriously, if it was not just a pretext to put a preferred candidate in the White House, it should mean that states cannot provide some voters better voting machines, shorter lines, or more lenient standards for when their provisional ballots get counted — precisely the system that exists across the country right now.

But since when is anything constitutional important to the GOP. It's about the politics, stupid. But it doesn't have to be.

In deciding cases, courts should be attentive not only to the Constitution and other laws, but to whether they are acting in ways that promote an overall sense of justice. The Supreme Court’s highly partisan resolution of the 2000 election was a severe blow to American democracy, and to the court’s own standing. The courts could start to undo the damage by deciding that, rather than disappearing down the memory hole, Bush v. Gore will stand for the principle that elections need to be as fair as we can possibly make them.

Read more. It's wonky, but worthy.

(Cross-posted at State of the Day.)

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