FLASHBACKS

Warning: slanted political fulminating ahead!

The 9th Circuit opinion in Southwest Voter has been described as "history repeating itself as farce" by Edward Lazarus, here. So far I haven't heard anyone use the terms "bad flashback," so that's how I'll describe the opinion. I think that the opinion isn't all that bad, as I've said below. Nonetheless, I've found myself revisiting old debates on what Bush v. Gore did and did not do, and, frankly, the discussions remind me of how unfortunate and scarring that opinion actually is.

Conservative attackers of the 9th Circuit have heaped all sorts of invective on the court while failing to realize that the court is only extending the equal protection arguments that the per curiam decision pushed in Bush v. Gore (or, at least, could reasonably have believed that it was doing so, if a bit ironically). They also heaped all sorts of invective on the Supreme Court's Lawrence opinion, arguing that once you establish that states can't punish sodomy, you've opened up the door to the destruction of marriage and even the legitimation of cross-species unions. As I note below, the Supreme Court made a similar move in Lawrence as it did in Bush v. Gore: this principle is not intended to extend to other areas. But conservative defenders of Bush v. Gore piously invoke those lines from Bush v. Gore a mere months after they quoted Scalia's dissent in Lawrence, "don't believe it." It seems to me that if you're going to criticize Lawrence for being too expansive, then you've got to criticize Bush v. Gore as well.

All of this reminds me of the extreme hypocrisy of the responses to Bush v. Gore; Soutwest Voter is like a funhouse mirror that throws those responses back at us again in new and grotesque ways.

The lesson, I think, is that conservatives try to claim the moral high ground with respect to constitutional principle, but when it comes to defending a decision whose results they like (Bush v. Gore), or attacking a decision the results of which they don't like (Southwest Voter), principle goes out the window. The main thrust of conservative commentary is nothing more exalted than decrying judicial tyranny when courts hand down decisions that they don't like.

Boo-frickin'-hoo.