James Taranto (WSJ OpinionJournal) made this interesting comment today about Georgia v. Ashcroft and principle vs. politics. I realize that he is using "politics" in the low sense of party politics, not in Eric's higher sense of "political choices made by a council of elders," but I still thought this might be of interest.
Best of the Web Today - June 27, 2003 By JAMES TARANTO ... In a lesser-noticed ruling yesterday, the Supreme Court in Georgia v. Ashcroft struck down a lower-court ruling that had rejected a Democratic redistricting plan for the Georgia state Senate on the ground that it "diluted" minority voting strength by spreading black voters our among more districts. What's interesting about this ruling is that it's a case in which most of the court's members can be said to have ruled on principle rather than party. Republicans have often cynically supported racial gerrymandering, the practice of creating "majority minority" congressional districts, which works to the GOP's advantage by making nearby districts more Republican. Indeed, not a single GOP lawmaker in the Georgia Legislature voted for the redistricting plan the court upheld yesterday. Yet it was the five "conservative" justices--the Republican appointees who decided Bush v. Gore in President Bush's favor--who upheld the Democratic redistricting plan. Dissenting were the four "liberal" justices, including the court's two Democrats. Only Republican appointees John Paul Stevens and David Souter voted with rather than against their party. ... Mark S. Scarberry Pepperdine University School of Law -----Original Message----- From: Eric Segall [mailto:[EMAIL PROTECTED] Sent: Thursday, June 26, 2003 5:49 PM To: [EMAIL PROTECTED] Subject: Re: Lawrence vs. Glucksberg It seems like at least some of us agree that this week's decisions have everything to do with political choices made by a council of elders and nothing to do with true doctrinal substance. I, for one, REALLY believe that. For those of you who agree, I wonder how we should approach these cases with our students. When I first started teaching I asked a famous critical legal scholar that question and the person responded that the scholarly hat wasn't the same as the teaching hat. That didn't satisfy me then and it doesn't now. But I am nervous about suggesting to my students that the results are all political choice and zero doctrine (which I believe). Any suggestions? Eric Segall GSU College of Law >>> [EMAIL PROTECTED] 06/26/03 20:23 PM >>> Isn't it obvious? The Court is doing what it has long done, acting as Posnerian "wise elders" squarely within the mainstream of American elite opinion, imposing this vision on aberrant states. Scot Powe pretty persuasively explains most Warren Court holdings on this basis. Only Powell's unexpected temporary brain lock and lapse from such elite opinion made it take this long. I wouldn't expect much sequelae from this case, any more than from Bush v. Gore. Frank Cross Herbert D. Kelleher Centennial Professor of Business Law CBA 5.202 University of Texas at Austin Austin, TX 78712
