REACTIONS TO THE 9TH CIRCUIT

Two points stand out for me in the negative reactions to the 9th Circuit panel decision in Southwest Voter earlier this week.

(1) People who like Bush v. Gore's result seem unable to correctly characterize the equal protection arguments in the case. Some (like Neal Lang, in the comments here), would prefer to rely on the Article II argument from Bush v. Gore, namely, that the state judiciary had illegitimately usurped power from the state legislature in its interpretation of Florida election law. Unless I'm misremembering the differences between the per curiam opinion and the concurrence, the Article II claims did not fly with a majority on the court. That's why Rehnquist wrote separately to explain that argument, which only he, Scalia, and Thomas bought. You might think they made a good argument -- even though that requires some rather severe intrusions of the federal courts on matters generally within state judicial competence and authority -- but it was not the argument that won the day in Bush v. Gore. I don't know how widespread this mischaracterization of the actual holding in Bush v. Gore is, but it's worth reiterating nonetheless that the equal protection arguments were at the core of the case, at least in the minds of the majority, apparently.

(2) Some, like Robert Alt, would like to rely on the per curiam argument in Bush v. Gore that theirs was a one-shot-only case, quoting these lines from the per curiam opinion:

The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards.

See also the post at Powerline here. There is nothing wrong with quoting these lines, of course, and arguing that they alone limit the equal protection principle. At the very least, however, people who take those lines seriously should be asked whether or not they take the Supreme Court's attempt at self-limitation in the recent sodomy case (Lawrence v. Texas) seriously as well. There the majority wrote as follows:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.

To which Justice Scalia, in his dissent, replied:

At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 17. Do not believe it. (emphasis added)

The "do not believe it" line from Scalia's dissent was quite widely reported, and it was my impression, at least, that conservative commentators in particular thought that Scalia was right: that the broad principles announced in the majority opinion would not be constrained by the stipulative attempts to limit the result to the case at hand.

If you think that Scalia is right there -- that courts are not to be trusted to limit their own principles -- then why would you think that mere stipulation would work in Bush v. Gore?

MORE: Smythe's World has a good set of links to criticisms of the 9th Circuit decision as well as some generally on-target comments, here.