Justice Scalia on Bush v. Gore

April 24, 2008 | | Comments Off on Justice Scalia on Bush v. Gore

Justice Scalia reacted indignantly when questioned about the Court’s decision in Bush v. Gore, suggesting everyone should “get over it” because the legal issue “wasn’t even close.” While I have always thought that outrage, while predictable and in some sense justified, the Court largely handled the legal issues fairly.

The problem with Justice Scalia’s dismissive response is not his justification of the ruling on the merits, the problem comes at the end where he says “what were we supposed to say? ‘It’s not important enough?'” Now I don’t expect CNN to get into fine questions of constitutional law, but Justice Scalia could stand a little humility when answering this question. Should the Court have said “we won’t hear it, the case isn’t important enough,” of course not. Quite the contrary. Look over the following passage from Baker v. Carr, which to the best of my knowledge is still good law on this point, and ask yourself whether it would be so preposterous for the Court to decide it wasn’t their place to make this call:

“Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”

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