oracle
07-09-2002, 10:21 PM
WERE THE BUSH V. GORE JUSTICES' VIEWS REALLY POLITICAL AND NOT PRINCIPLED? (http://writ.news.findlaw.com/hilden/20020709.html)
A Recent Supreme Court Opinion On States' Ability To Regulate Judicial Candidates' Speech May Prove The Cynics Wrong
By JULIE HILDEN
julhil@aol.com
Tuesday, Jul. 09, 2002
On June 27, the Supreme Court issued its 5-4 decision in Republican Party of Minnesota v. White (http://laws.findlaw.com/us/000/01-521.html). There, pursuant to the First Amendment, the Court struck down restrictions that the Minnesota Supreme Court had imposed limiting the ability of candidates for elected state judgeships to voice their views on disputed legal and political issues.
In White, a conservative majority held, in effect, that a state does not have unlimited discretion to decide the way elections within that state will be held. Instead, the Bill of Rights stringently controls how it can do so.
The decision was dwarfed in the press by several other extremely significant end-of-Term opinions on school vouchers and the death penalty. However, it is significant and, indeed, stunning in its own right.
Why? In part, because the Justices' respective opinions in White suggest that their opinions in Bush v. Gore (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=00-949) may have been principled and heartfelt - not opportunistic and political, as many have claimed. And that, in turn, suggests that the Court's action in deciding Bush v. Gore - and thus resolving the 2002 election - may have been far more legitimate and properly judicial than is commonly thought.
In an earlier column (http://writ.news.findlaw.com/hilden/20020321.html) posted shortly after the oral argument in White, I discussed at length the merits of the different arguments raised for and against the Minnesota restrictions. In this column, I will focus on the Justices' respective positions in White, pointing out how those positions are, in the main, strikingly similar to those they adopted in Bush v. Gore.
Why White Tends to Rebut the Cynics' View of Bush v. Gore
After Bush v. Gore was decided, of course, many commentators became a lot more cynical about the Court. It would not be an overstatement to say even that for some, their faith was shaken.
The conservative Justices, they argued, who had always claimed to be pro-states' rights, had suddenly reversed themselves. They had ignored Florida's rights to determine its own results in the 2000 Presidential election through its own judiciary and legislature, so they could support the Republican Presidential candidate.
Conversely, the cynics said, the liberal Justices, who had always trumpeted the importance of enforcing constitutional guarantees such as Equal Protection rights against the States, also opportunistically reversed themselves. They suddenly became states' rights enthusiasts when it benefited the Democratic Presidential candidate, and uncharacteristically insisted that the Court should leave Florida alone.
So therefore Bush v. Gore was all about politics, not principle, the cynics said. But were they right?
Not necessarily - for the Court broke down exactly the same way in the recent White decision. The majority of Kennedy, O'Connor, Rehnquist, Scalia, and Thomas held. So did the minority of Breyer, Ginsburg, Souter, and Stevens.
...
Click here to read more (http://writ.news.findlaw.com/hilden/20020709.html)
A Recent Supreme Court Opinion On States' Ability To Regulate Judicial Candidates' Speech May Prove The Cynics Wrong
By JULIE HILDEN
julhil@aol.com
Tuesday, Jul. 09, 2002
On June 27, the Supreme Court issued its 5-4 decision in Republican Party of Minnesota v. White (http://laws.findlaw.com/us/000/01-521.html). There, pursuant to the First Amendment, the Court struck down restrictions that the Minnesota Supreme Court had imposed limiting the ability of candidates for elected state judgeships to voice their views on disputed legal and political issues.
In White, a conservative majority held, in effect, that a state does not have unlimited discretion to decide the way elections within that state will be held. Instead, the Bill of Rights stringently controls how it can do so.
The decision was dwarfed in the press by several other extremely significant end-of-Term opinions on school vouchers and the death penalty. However, it is significant and, indeed, stunning in its own right.
Why? In part, because the Justices' respective opinions in White suggest that their opinions in Bush v. Gore (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=00-949) may have been principled and heartfelt - not opportunistic and political, as many have claimed. And that, in turn, suggests that the Court's action in deciding Bush v. Gore - and thus resolving the 2002 election - may have been far more legitimate and properly judicial than is commonly thought.
In an earlier column (http://writ.news.findlaw.com/hilden/20020321.html) posted shortly after the oral argument in White, I discussed at length the merits of the different arguments raised for and against the Minnesota restrictions. In this column, I will focus on the Justices' respective positions in White, pointing out how those positions are, in the main, strikingly similar to those they adopted in Bush v. Gore.
Why White Tends to Rebut the Cynics' View of Bush v. Gore
After Bush v. Gore was decided, of course, many commentators became a lot more cynical about the Court. It would not be an overstatement to say even that for some, their faith was shaken.
The conservative Justices, they argued, who had always claimed to be pro-states' rights, had suddenly reversed themselves. They had ignored Florida's rights to determine its own results in the 2000 Presidential election through its own judiciary and legislature, so they could support the Republican Presidential candidate.
Conversely, the cynics said, the liberal Justices, who had always trumpeted the importance of enforcing constitutional guarantees such as Equal Protection rights against the States, also opportunistically reversed themselves. They suddenly became states' rights enthusiasts when it benefited the Democratic Presidential candidate, and uncharacteristically insisted that the Court should leave Florida alone.
So therefore Bush v. Gore was all about politics, not principle, the cynics said. But were they right?
Not necessarily - for the Court broke down exactly the same way in the recent White decision. The majority of Kennedy, O'Connor, Rehnquist, Scalia, and Thomas held. So did the minority of Breyer, Ginsburg, Souter, and Stevens.
...
Click here to read more (http://writ.news.findlaw.com/hilden/20020709.html)