I wonder how many percentage points incumbency is worth in a presidential race, specifically the current one.
Looks to me that Bush v. Gore, which was supposed to be good for one ride only, has been good for eight years.
Well, if the Michigan affirmative action cases in higher education are only supposed to be good for 25 years, as Justice O'Connor expressed the hope in casting the tip-weight vote, I guess Bush v. Gore can be good for 8 years.
This is a little different than the Con-Law I'd envisioned, let's say four years ago and before.
I'd thought we'd gotten past the quick fix, good for this case only, with Dred Scott in 1857.
That 'self-inflicted wound' on the Court led directly to the Civil War, three years later, by crystalizing public opinion against the mistreatment of human beings.
Does anyone think that Bush's election this time around cures Bush v. Gore from last time?
Or has he capitalized on illegitimacy in Round-1 to hang on in Round-2?
Bush supporters may suggest that in Con-Law theory the People, the voters, knew all about Bush v. Gore and elected Bush this time anyway, and that this cures any arguable defect.
Politically, however, it looks like capitalizing on the original wrong, make that 'alleged illegitimacy,' to gain enough percentage points to carry the election, unless Kerry pulls off an unlikely victory at 10 p.m., PST.
We shall have to press on for another four years.
Avanti, Sempre Avanti, as an old paisano I knew used to say.
Hamilton characterized the Court, in advance, in the Federalist, try 78, as "the least dangerous branch."
I'd say the Court in fact is the MOST dangerous branch.
It isn't elected, is not responsible to the electorate, is insulated from popular recall, and can toss a monkey wrench into the machinery of a presidential election.
The French have a word for this.
Sabotage.
From 'sabot', shoe, the old peasant wooden kind, which when thrown into machinery, brings it to a grinding halt.
Sabotage, monkey-wrench, all the same.
I can't wait to see what kind of Democracy we export over the next four years.
Why would the Muslim world want to adopt our example?
I'm not sure ours is all that better than theirs.
Do you happen to recall King George III?
It's a good thing we don't have a Thomas Jefferson here today to write up a list of grievances.
The next time the Supreme Court decides an election, I want international observers, INSIDE the chambers AND the Conference room.
***
The above was strictly academic, of course.
As a Con-Law-Prof, I would be remiss if I failed to point out that the power exercised by the Court to decide Bush v. Gore was called the POWER OF JUDICIAL REVIEW!!!
It is a MOST CONTROVERSIAL POWER, for reasons that somehow elude my power to describe adequately.
The Court gave this power to itself.
In that famous case from 1803 where What's-his-name sued to get his Midnight Judge's commission signed by President You-know-who.
You know, the case where Chief Justice John Marshall modestly backed off from rectifying an obvious wrong (the withholding of delivery of the signed and sealed, but not delivered commission) in favor of performing a piece of judicial slight-of-hand that heads still spin in wonderment at.
So subtly and magically was this power grabbed that it took Thomas Jefferson years to figure out what happened.
Anyway, that's the power exercised by the Court to kill the Missouri Compromise, uphold slavery, and take a gratuitous shot at, and deny citizenship to an entire group of my fellow human beings, all in one case called Dred Scott.
It's also the power exercised to kill the decision of the Florida Supreme Court in Bush v. Gore.
It's also the power used during the Lochner Era to take the people's alleged sovereignty from the people whose representatives voted to protect the people who needed protection most, people working for substandard wages in substandard work-places for long hours with no workers comp and no union protection.
Perhaps the GOP qualified as "a discrete and insular minority" commanding heightened scrutiny in 2000, under Fn. 4, Carolene Products.
Maybe the political process was being so skewed by the Florida Supreme Court that the U.S. Supreme Court decided it needed to un-skew it in the other direction.
All I know is that someone got skrewed, and it wasn't Bush.
Expect headaches and you won't be disappointed if there aren't any.
I'm pleased to have had this opportunity to conduct this strictly academic exercise.
Well, you may say, this power has also been used to do good, hasn't it?
Of course. Some people really LIKED slavery.
And liked slave-labor conditions in the work-place long after slavery was officially abolished.
The point is that the Power of Judicial Review is more than a sword.
It's a hand-grenade.
It's a land-mine.
First the Court plants the land-mine.
Then the Court drives over it.
BANG!!
BOOM!!!
It's just a question of time.
You just watch.