when pigs fly … expect the unbelievable

Archive for May 26th, 2009

Last week I was blogging about the 5 cases within Michael Trachtman’s 34 greatest hits that had impact on women’s issues.  The last one that I listed was Bush v. Gore (2000).  The reason?  That decision allowed Bush to assume the presidency in 2001. 

There is certainly room for much criticism of the Court’s majority opinion.  Bad facts make bad law.  Critics as significant as Laurence Tribe, probably the nation’s most respected constitutional expert and Harvard Law professor (and who, in this case, was one of the attorneys in the Gore camp) opined that the opinion in Bush v. Gore “…cannot be grounded in any previously recognizable form of equal protection doctrine.”   Harvard Law professor Randall Kennedy characterized the opinion as a “hypocritical mishmash of ideas.”  Sanford Levison, a law professor at the University of Texas, uttered words with which many Democrats and Republicans agreed when he said that the opinion was easily explainable — the Republican Justices intended to “assure the triumph of a fellow Republican who might not become president if Florida were left to its own legal process.”

Two observations that I make illustrate why I think that Bush v. Gore is so important for women’s issues.  Preliminarily, the opinion cleared the way for Bush to become president and allowed him to make appointments (including Supreme Court appointments) that might not be in the best interests of women’s rights and liberties.  Secondarily, the opinion capitalized on how very partisan our country has become — even in the “independent” branch of government in which the “rule of law” should prevail.  As those who study democracy understand, the value of democracy is the protection of the rights of the minority.  When even the Supreme Court is hysterically partisan (and Justice Stevens, in his dissent, verified this:  “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear.  It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”), things bode well for none of us.  When the Supreme Court is hysterically partisan with a Republican bent, it could not bode well for women, and the result — the two Bush administrations, did not bode well for women.

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