THE CRITICS

If you want a sampling of the criticisms of the opinion, go here, here, and here. Most interesting: Steven Hayward calls the 9th Circuit a "rogue court," and then, unironically, goes on to note that there were some folks who worried that the Supreme Court's arguments in Bush v. Gore might give courts the green light to make these kinds of rulings. Hayward doesn't spell it out here, so I'll do it for him: the Supreme Court in Bush v. Gore did what you would think only liberal "rogue courts" should be doing. Very interesting. So, presumably, one should think that Bush v. Gore is wrongly decided. And Roger Clegg argues that the 9th circuit's opinion isn't "objective" because, apparently, it mischaracterized what Proposition 54 is supposed to accomplish (although I don't quite see the mischaracterization). But that's hardly interesting. The bigger question: did the 9th Circuit mischaracterize Bush v. Gore? Hayward seems to say no. I say no. I'm sure that it won't take long for someone to say "yes" with a straight face. [And, see the next paragraph: when pressed, Hayward might say, "yes".] The conclusion: where you stand depends on which mouse pad you've got: "Bush-Cheney team leader" or "re-elect Gore in 2004."

MORE: The last sentence is too glib and generally silly. Strike it. Attentive readers will no doubt note that I appear to argue above that Hayward has a "re-elect Gore in 2004" mousepad. I doubt it, but his comments on the opinions could be read as a criticism of Bush v. Gore -- or, at least, a criticism of a "liberal" court that uses strong equal protection arguments. So since he presumably thinks that the result was nonetheless correct, and since he presumably is closer to the "team leader" side, the question should be: what principled distinctions are possible here?