I assume we all agree that if Scalia (or any other Justice) recused himself solely to somehow effect the 2004 election, that would be "innapropriate," "bad," maybe "impeachable," whatever. In Romer v. Evans, Justice Kennedy wrote an opinion for the Court that completely ignored (never even mentioned) the most applicable precedent in the face of a dissent relying strongly on that precedent (as well as at least some of the briefs).In Allen v. Wright the Court distinguished a few prior cases that were directly on point in a manner that no reasonable person would defend. I'm sure other people have their own most hated cases (Bush v. Gore, Printz, whatever). My question is whether an opinion based on its face on "legal reasoning" could ever be as "bad," or "impeachable," as a decision based, not on a bribe, or the color of the plaintiff's tie, but a well thought out view on what is best for the Country taking all things into account, but not based on "legal reasoning." My intuiti! on is that the distinction probably breaks down.
Eric [EMAIL PROTECTED] 10/29/03 19:05 PM >>> I just want to take this opportunity to become the first person (or at least the first person known to Sanford Levinson) to express the hope that the Supreme Court does affirm the 9th Circuit, even though I agree that it's unlikely they will do so. I too believe the 9th Cir. was right on the merits (setting aside the standing issue, for a moment, on which I don't have any view). Of course, the call is easy for me because my political and judicial ducks are perfectly aligned here. I think that the 9th Cir. decision was right AND I also would prefer the Republicans to win the 2004 election, despite what I see as their wrongheaded stance on the Pledge (or at least I prefer that the Democrats lose). There is a danger that a Pledge Amendment will pass, and that that will be worse than an adverse Supreme Court decision. But I think this risk is not too great because of the extreme difficulty of getting through the amendment process, and because any amendment that can pass will probably have to be very narrowly phrased. The situation presents a more difficult dilemma for the 95% or so of the population for whom their political and legal interests are at odds with each other here. I look forward to seeing how they resolve their dilemma. Ilya Somin On Wed, 29 Oct 2003, Sanford Levinson wrote: > I have no idea why Justice Scalia recused himself. (And, as you know, I > remain unpersuaded that he was in fact under a duty to do so.) But let's > assume that there is evidence that he did it in order to create the > "win-win" situation that Richard Duncan initially hypothesized. I.e., A > 4-4 affirmance would be a Godsend (bad pun intended) for Republicans who > are champing at the bit to propose a "keep God in the pledge of allegiance" > amendment as part of the 2004 election context. Since most of us are > absolutely confident that we know that there are going to be at least 4 > votes to reverse on the merits, Scalia's recusal would prevent an "opinion > of the Court" reaching that result (and, presumably, obviating the need for > such an amendment). Many people, of course, expect the "moderates" to use > standing doctrine to dump the case, which would allow people to say that > "only a procedural technicality" saved God as part of the Pledge (so that, > therefore, an amendment is necessary to head off a case in which there is > proper standing). I know of absolutely no one, incidentally who expects > (or, save for Republicans, wants) the Supreme Court to affirm the Ninth > Circuit, even among those who, like me, believe that the Ninth Circuit was > clearly correct on the merits. (I favor the Bickelian passive virtue that > says there's no standing.) > > In any event, if there were firm evidence of the scenario sketched above by > Rick and accepted, at least for discussion purposes, by other participants > (and, let me be clear, I am extremely doubtful that any such evidence > exists), would that not be grounds for impeachment? I.e., would not such > blatantly partisan strategic decisionmaking re recusal count as sufficient > corruption and "bad behavior" to justify impeachment? I will not reopen > Bush v. Gore, because I am willing, arguendo, to accept the proposition > either that the majority in that case believed all of the arguments set out > in the per curiam opinion (however much I doubt that) or that they were > sincere Posnerians who believed that the country was endangered by > continued uncertainty about the status of the election. In this > hypothetical (initially presented, I repeat, by Richard Duncan and not by a > crazed anti-Scalian like myself), the only thing that is sincere is a > desire to help the Republican Party in the next election. To put it > mildly, this totally collapses the distinction that Jack Balkin and I have > tried to suggest between "high politics" (unavoidable as part of the > judicial role in interpreting the Constitution) and "low politics" > (presumptively avoidable and unacceptable). > > sandy
