Grasping Reality on TypePad, by Brad DeLong

And Scott Lemieux:

Sorry, Still Not Over Bush v. Gore: Justice Scalia goes on Piers Morgan and tries to defend himself: Antonin Scalia was a guest on Piers Morgan's show last night, and he was relatively entertaining and at times even said things I agree with. For example, even in the wake of the Republican bait-and-switch on the DISCLOSE Act, Scalia held firm to his previously expressed view that it's permissible and desirable for people making large political donations to have these donations disclosed. This is a welcome contrast to the Sarah Palin/Mitch McConnell theory of the First Amendment, under which powerful actors trying to influence the political process have the right to be shielded from criticism or any other consequences.

On the other hand, there is a self-congratulatory aspect to Scalia's pronouncements about jurisprudential theory that remain grating in light of his actual work on the Court. As always, he presents himself as "The Last Truly Principled Judge in America," adhering to the fundamental principles of the text of the Constitution while other judges preempt democracy by illegitimately injecting their own views into the Constitution. It's hard for me to sit still for this in light of Scalia's heavy involvement in Bush v. Gore, the most obvious example of low politics affecting the Court. Scalia's attempts to justify the indefensible have not improved:

SCALIA: Contentious? Well, I guess the one that, you know, created most—most waves of disagreement was Bush v. Gore, OK? That comes up all the time. And my usual response is get over it.

MORGAN: Get over the possible corrupting of the American presidential system?

MORGAN: Justice Scalia?

SCALIA: Look it, I—my court didn't—didn't bring the case into the court. It was brought into the courts by Al Gore. He is the one who wanted courts to decide the question which—when Richard Nixon thought that he had lost the election because of chicanery in Chicago, he chose not to bring it into the courts. But Al Gore wanted the courts to decide it. So the only question in Bush v. Gore was whether the presidency would be decided by the Florida Supreme Court or by the United States Supreme Court. That was the only question, and that's not a hard one. MORGAN: No regrets? SCALIA: Oh, no regrets at all, especially since it's clear that the thing would have ended up the same way anyway. The press did extensive research into what would have happened if what Al Gore wanted done had been done county by county, and he would have lost anyway.

Scalia is inadvertently right about one thing: It's not a "hard question" whether this case should have been resolved by the Florida Supreme Court or by the United States Supreme Court. Since the case was an issue of state law that did not present anything remotely resembling a substantial federal constitutional question, it should have been decided by the former. Despite all of his previous discussion of "textualism" and "originalism," Scalia makes no attempt to defend the holding that using different vote-counting methods in different counties is unconstitutional in this case—but not in any other case (including the count that gave Florida's electoral votes to Bush, which also didn't use a uniform standard)—using his stated judicial principles, for the obvious reason that this is impossible. So, instead, he rests on an argument that's pure politics. Worse, it even fails on its own pragmatic terms on multiple levels.

First of all, it's not true that Bush would clearly have won a recount. In fact, he probably would have lost. This aside, if Bush would have won anyway, it's not clear why the Supreme Court had to intervene in the first place—if the result would have stayed the same, why the necessity to get involved at all?

Of course, it's surprising that Scalia wants to tell himself that Bush v. Gore didn't ultimately matter. But he's wrong about the consequences, and even if he were right it doesn't make Bush v. Gore any more defensible.

Ian Millhiser:

After Casting Key Fifth Vote For Bush, Justice O'Connor Now Regrets Bush v. Gore: Justice Sandra Day O’Connor, the conservative retired justice who provided the fifth vote to install George W. Bush as president, is now having second thoughts about that decision:

Looking back, O’Connor said, she isn’t sure the high court should have taken [Bush v. Gore].

“It took the case and decided it at a time when it was still a big election issue,” O’Connor said during a talk Friday with the Tribune editorial board. “Maybe the court should have said, ‘We’re not going to take it, goodbye.’” The case, she said, “stirred up the public” and “gave the court a less-than-perfect reputation.”

“Obviously the court did reach a decision and thought it had to reach a decision,” she said. “It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.“

If nothing else, Bush v. Gore demonstrates how justices who are determined to reach a certain result are capable of bending both the law and their own prior jurisprudence in order to achieve it. In Bush, the five conservative justices held, in the words of Harvard’s Larry Tribe, that “equal protection of the laws required giving no protection of the laws to the thousands of still uncounted ballots.”

The Court’s decision to hand the presidency to Bush stunned many legal observers, some of whom were O’Connor’s fellow justices. Retired Justice John Paul Stevens once recounted a story where he ran into fellow Justice Stephen Breyer at a party while a relatively early phase of the case was pending before the Court. According to Stevens, “[w]e agreed that the application was frivolous.”

Indeed, Bush’s own lawyers were skeptical of the legal theory that ultimately made up the basis of the Court’s decision in Bush. As Ben Ginsberg, a top lawyer on Bush’s presidential campaign, explained in 2006, “just like really with the Voting Rights Act, Republicans have some fundamental philosophical difficulties with the whole notion of Equal Protection.”

And, yet, O’Connor and four of her fellow Republicans joined together to embrace a particularly aggressive reading of Equal Protection — at least so long as it could put George W. Bush in the White House.