Hypocrisy

A commenter writes:

Both you and Klinkner suffer from the same affliction. Hypocrisy. You like the decisions you like because they fit your values and beliefs regardless of whether they are consistent with each other.

I won't speak for the other person mentioned (he speaks volumes for himself), but let me try to defend myself. My ideas regarding when to limit or not limit the Court might be many things, but I don't think they are hypocritical. Unless you are a radical, small-d democrat who believes that we shouldn't have a Supreme Court, or an authoritarian who thinks that some Platonic guardians are necessary to keep the great unwashed from getting out of hand, you need to develop some sort of principled basis for when the Court should and should not exercise judicial review. In general, I say let the people decide, except in the circumstances I mentioned--fundamental political rights and discrete and insular minorities. At times, this means that I have to criticize Court decisions despite the fact that I agree with the substantive outcome. Roe v. Wade fits into this category. I strongly support the right to an abortion, in fact I think there should be public funding available to women who want the procedure. Nonetheless, I'm troubled by the fact that this was done through the Court and not through democratically elected legislatures.

The question for my critics is can you name a Supreme Court decision where you like the substantive outcome but nonetheless believe that the Court should have acted differently.

As for Bush v. Gore, the right to vote is one of the fundamental political rights that the Court should protect. So by all means, the Supreme Court should ensure that state election procedures conform to the Constitution. If not, the "republican government" clause and the 14th and 15th Amendments are meaningless. So my problem was not that the Court acted in Bush v. Gore, but that they acted wrongly. Instead of ensuring the fullest and fairest recount (one that Bush may well have won), they decided that in the interest of avoiding a political crisis they had to act.

Putting aside whether there was a crisis, especially since the majority defined it as a lack of legitimacy for their favored candidate, the Court arrogantly assumed that only they could defuse the crisis. The better option would have been for the recount to proceed. If Gore ended up winning that recount (and it's not clear that he would have), the Republicans who controlled the Florida legislature would have picked their own slate of electors. Facing two sets of electors from Florida, the matter would have gone to the House of Representatives where the majority-Republicans would have certified the Bush electors. The outcome would have been the same, but at least it would have been done through elected legislators. If people didn't like that outcome, they could have acted in the next election. With the decision being made by the Supreme Court, the only option was to rage impotently and wait for a handful of justices to kick.