PRIMORDIAL PARTISANSHIP

I'm beginning to move in the direction of a very pessimistic view of the capacities of actors in the legal culture to transcend partisanship, when it counts, and to apply rules and arguments irrespective of result. Maybe it's clear already that I don't believe that people can transcend partisanship, and maybe it's clear already that I am not sure that people should do so (a la an account of "high politics). But I really am beginning to believe that we are shaped by our commitments rather than being able to shaped them in any fundamental fashion, at least as far as politics is concerned.

Nelson Lund is a case in point. His recent article in NRO (via HA) attacks Roe v. Wade (because it was too activist a decision, but also presumably because he's not a real fan of abortion rights) and argues that Bush v. Gore was really just the spirit of Roe v. Wade coming home to roost. But he's not arguing that the majority in Bush v. Gore was engaging in political judging: only the dissent was. Lund is already on record as claiming that Bush v. Gore was really "no big deal," totally predictable as a matter of law, and that the outcry over the decision really reflected the liberal leanings of the law professoriat rather than any dispassionate analysis of the issues at stake. Here's his analysis this time, in the context of explaining what he sees as the critical question in the current battle over judicial nominations:

The real question is whether we are to get judges committed to applying the law, or judges who treat the law as a game in which the winner gets his policy views enacted as judicial decrees. If the Democrats' filibuster strategy succeeds, judicially created abortion rights will certainly be safe for the moment, but no rights — and no laws — will long be secure from cynical judicial manipulation.

Bush v. Gore provides an illustration. The majority opinion applied well-settled precedents from the Warren Court in a perfectly straightforward fashion, and none of those dissenting could explain why those precedents were inapplicable. Instead, they criticized the majority on political grounds. Justice Breyer, for example, admitted that the Florida recount was unconstitutional, but argued that the U.S. Supreme Court should have let it proceed anyway. Why? "Above all, in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public's confidence in the Court itself."

Lund then goes on to argue that Breyer was being disingenuous in calling for judicial restraint, since he had just authored the opinion striking down Nebraska's partial birth abortion law in Stenberg v. Carhart.

In the case of Bush v. Gore, Lund wants to have his cake and eat it, too: he wants to be able to criticize the dissenters for being unprincipled, but he also wants to claim that the majority was simply applying settled precedent as if this case were no more momentous or interesting than any other issue. But stare decisis is the wrong focus, given the fact that the Rhenquist Court has been more than happy to depart from precedent when it thinks that the Warren Court went too far. And Scalia, at least, is explicit about this: precedent that was wrong when it was decided should not be viewed as binding. Lund claims that only the dissent in Bush v. Gore was engaging in "cynical judicial manipulation," but I am hard-pressed to see why Stenberg v. Carhart is any more objectionable than the choice in favor of applying Warren Court precedent in Bush v. Gore, given an apparent willingness of the members of the majority to depart from and narrow that precedent in other situations.**

A choice to abide by a norm can be as cynical as a choice to disregard it, depending on the expected behavior of the individual in question. Not to put too fine a point on it, but a tyrant who occasionally refrains from summary executions can also use instances of restraint as expressions of power. And here the issues are more subtle: in Stenberg v. Carhart, for example, the dissenters (except Scalia, I gather) seem to argue that they could still hold to Casey, which Rehnquist and Thomas at least disagreed with when it was decided, and reach a different result from the majority. So the dissenters in Casey could still hold to stare decisis and reach a different result from the majority in Stenberg v. Carhart, who were the primary authors of Casey. Very squishy and very interesting. Apparently, individuals can apply precedent and reach different results, results that are at least partially predictable by how they stood toward the precedent itself, when it was decided. That should make you go "hmmm."

Any story that seeks to cast the majority or the dissent in Bush v. Gore as simply "applying the law" is weird, from my perspective. These were close issues on which it would be possible to develop mutually conflicting opinions. The story of Bush v. Gore is not only the story of liberal justices calling for restraint; it's also the story of conservative justices self-righteously donning the mantle of precedent in a situation in which it was not necessary for them to do so (pace the rhetoric about "unsought responsibility": Congress could have figured this one out, as the statutes envisioned) and in which they would not have been expected to do so given their past stance on the line of precedent that they used for their authority. But for Lund, it's only Breyer who's engaging in politics. The only way I can explain this argument on Lund's part is to refer to some kind of primordial partisanship that is from the beginning more blind to what Scalia and Rehnquist are doing than to what Breyer and Ginsburg are doing.

If you've read this far, you'll undoubtedly get flashbacks of earlier discussions that have just gone 'round and 'round on this issue, with the stances people take being relatively predictable based on their political preferences. But that's precisely the point.

MORE: See Rick Hasen's (more detailed) reply to Lund's essay here.

**I'm a little unfair here, I realize in retrospect; Rick Hasen's approach makes much more sense. The main complaint shouldn't be that the majority should have felt free not to apply relevant precedent, as I imply above, but that they had wide latitude to read that precedent in different ways and that they chose a reading that they probably would not have chosen under different circumstances.