Josh, I think it more likely that Bush v. Gore will be one of the intentionally (and deservedly) forgotten decisions in the Court's history, not even a light year close to a precedent.

Thanks for this dispatch, Josh. You and Dayo put up some of the best posts among the newer TNR staffers. This is a subject that almost literally drives me to drink. Many conservatives are not against an activist judiciary, they merely oppose activist liberal judges, or sometimes, even restrained judges like Stephen Breyer. Conservative activism is fine to achieve conservative policy ends. Jeff Rosen has written trenchantly about the conservatives on the Supreme Court who for years have voted to strike down acts of Congress. Then there is no outrage from the Richard Lands and Grover Norquists about the imperial judiciary. I was talking about this very topic with my friend Mike G., who I have known since college. I mentioned to him that the late Philip Kurland, a principled conservative who taught - if memory serves - at the U. of Chicago Law School, testified in 1987 against the nomination of Robert Bork to the Supreme Court before the US Senate on the grounds that he was a judicial actiivist of the right. The legal correspondent of Commentary, Gary Rosen, wrote a superb article a few years ago denouncing the Bush v. Gore decision of 2000. The usual suspects wrote letters to the editor on Rosen's article, including one Mr. Robert Bork , protesting Rosen's protest. Rosen shot back in his reply to Bork and the like - minded rest by saying to them in effect: just imagine how loudly you would have been screaming if that decision had gone the other way. There aren't many Kurlands on the right. Or Rosens (Gary), too.

The distinction is that precedent is the law going forward, so the injury to conservative ideals happens every time consensual sodomy goes unpunished.

BvG on the other hand has no presedential value. Thus the injury was only over the 4 years preceding GW's reelection.

(I'm kidding, but there is a valid distinction between disliking the outcome of a case and disliking the law as applied until further notice.)

Gee, is it possible that the conservative justices led by Scalia and their movement cheering squad are nothing but ferocious hypocrites who do nothing but decide cases politically, use claims of "doctrine' (federalism, judicial restraint, strict construction, etc.) to give a veneer of legal principle to their decisions, and abandon those doctrines whenever they turn out to conflict with the desired outcome?

It is easy to understand how judicial conservatives decide cases:

In any conflict, property interests trump state interests and state interests trump individual rights or liberty interests.  Federalism questions are decided opportunistically depending on which direction comports with the desired outcome based on the preceding sentence.  That's all you need to know to understand conservative "jurisprudence."

aculimic,

Is it possible that disparate voting rights and opportunities are an injury going forward, or only disparate vote counting methods in Florida in the year 2000?

Scalia and Thomas are the two most activist judges on the bench. That's the irony.

But conservatives don't care about that, "strict constructionist" means overturning Roe.

"Get over it" is an incredibly weak response coming from a member of a group that endlessly scrutinizes its historical decisions.  Aculimic does have a point that Bush v. Gore has not really been a precedent thus far, but the fact is that it was one of the major court decisions in history, and ignoring it isn't really an option.  If a similar situation ever arises again, the Court will have to look at Bush v. Gore in deciding whether or not to apply the same reasoning.  Maybe they will and maybe they won't, but it's wrong to suggest that people should just get over it.

Roidubouloi: Conservatives trample on states' rights when they control executive power at the federal level. Look at the issues of medicinal marijuana and euthanasia. Liberals tend to be not exactly consistent here, either. They are inclined to support our federalist system's lower order power centers when they have been booted out of office on the Potomac.

Sorry, liberal, I don't quite see it that way.  Conservatives ignore states rights when the states are on fhe wrong side of the property-state-individual hierarchy.  They are for or against federal v state power for the same reason.  Of course, when they are in power in Washington, it stands to reason that the will think the Federal government is more often on the right side, but they will support state power opportunistically.

There is a second hierarchy at work that also orders their decisions when the first hierarchy is not controlling:

Judicial power trumps executive power.  Executive power trumps legislative power.  And, of course, judicial power trumps legislative power, just as, by transitivity, property rights trump individual rights.

I don't think either federalism or judicial activism/restraint have ever been sine qua non ideologies, valued for any inherent worthiness, so much as canards used by both sides in equal measure to support whatever tangible goal they really cared about.  An excellent book called "Negotiating the Constitution" by Joseph Lynch examines how this was the case even in the first six Congresses, when the Federalists and the Republicans - the people who wrote the damn thing! - constantly vacillated in their interpretations of federalism or "strict construction" or what have you based on how it served their political ends.

I think we should be careful not to lump all the conservatives in together, you have the pro-chamber of commerce wing in the Chief Justice and Alito, and the whack job wing of Scalia and Thomas (who still only agree 80% of the time) It is a very different court than 2000 even though the makeup seems about the same.

blackton,

I disagree.  I think that one must be careful TO lump the conservatives together.  Then apply the real theory of conservative jurisprudence:  property > state > individual; judiciary > executive > legislature, and you can account for almost everything that happens on the court (you just have to keep track of where the interests of property and the monied classes lie in each case).  True, each justice will occasionally take an idiosyncratic position, but these are largely irrelevant precisely because the votes are lumped together.  In all but a rare case, the idiosyncrasy is of no consequence.

roi, we've been over this, but how do you account for Kelo again, where the conservatives were on the side of the individuals against state power? Surely the monied interests in that case were on the side of New London, yes?  And teh conservatives voted against the monied interests.  and that's just one case.

I realize you have an ideology, and a template.  But it doesn't hold in every instance.

Oh, and conservatives are always evil, all the time.  I think I've got that part right, no?

The definition of a person who calls judges activist:  An individual finds that a judge's decision in a case is different than the descision the individual wanted.

No DON'T lump conservatives together. There are those who believe in original intent, limited government and federalism: individuals(including property owners)>state. When they stray they are not being true to their beliefs(as in Bush v. Gore)they are being activists. But sometimes being an "activist" means putting the horse back in the barn that was let out by an actual activist. The thing is that when a liberal jurist strays it's not considered straying but ok when they overturn or stretch original intent. I would consider Scalia a "strayer" in say that medical marijuana case in Ca. but not Thomas who stayed "true" in proclaiming "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything," including "quilting bees, clothes drives and potluck suppers." Thus "the federal government is no longer one of limited and enumerated powers." Of course Thomas can stray too but generally conservatives=individual>government.

Thomas is the most savage, awesome constitutional scholar on any bench. His marijuana decision is a sterling example of his rigorous defense of the constitution even when the policy outcome was contrary to his personal legislative opinions.

Er... a question, please:  The first half of the post is about McCain complaining about former cases; Scalia's name is not mentioned.  The second half was about Scalia's response to complaints about one of his decisions; McCain's name is not mentioned.  Is there a reason they are lumped together in this post, other than that both more-or-less embrace the description "conservative" (as does half of America)?  

Hey, I have always accepted that this is a partisan magazine (much more so lately, I think), looking for any way to trash the enemy, but c'mon guys.  Oh, and on that note, can you put out some new posts on the Environmental blog?  It has been my lunch hour's savior during this heavy Dem primary bickering, er, coverage, which long ago passed the "Tiresome" mark and by now has buried the needle at the far right of the red zone marked "Boring The Living Crap Out Of Me."

Bush v. Gore *wasn't* precedent setting in any way. It was an arbitration, which is why it was so infuriating to the losers. Nobody wanted the Court to step in in that role - I'm sure the Justices didn't want to - except maybe the winners, but who knew? It was an embarrassing decision and ought to be put away as quickly as possible, as I expect it will.

Scalia's "get over it" says more about his being an a--hole when he's cornered knowing he has nothing to say worth saying.

roidubouloi:  The last 8 disasterous years are a continuing injury, but as tomeg said, BvG can never hurt us again (any court citing it as precedent would reach the same conclusion w/o precedent because the Court in that case essentially said that the decision was a one-off).

Blackton: You have hit a home run here. The ideologues want to vector all of the attitudes and diversities together, melding them into a single voice. There are the Chamber of Commerce conservatives, the libertarians (some overlap here with the first category), principled states' righters, and the religious right. They don't speak or act as one.

The conservatives just vote as one.

Blackton, I have honestly forgotten Kelo since you last mentioned it and I read it, but I recall the outcome being entirely consistent with the hierarchy which is property-state-individual rights for the conservatives and the reverse order for the liberals, but quite a bit more nuanced in my opinion.  And, yes, blackton, on the whole conservatives in America in 2008 are pretty evil, screwing everyone and everything, stealing elections, stealing public resources, stealing the country's good name for no better reason than their insatiable greed, all dressed up on a bunch of pseudo-doctrine that doesn't mean a goddamn thing other than, "We win, you lose."

liz, that original intent, limited government stuff is complete hokum.  The trot it out cynically and opportunistically to justify whatever they want to do on a given day, see above.  Those are rhetorical devices for conferring legitimacy on an outcome driven decision, which is the only kind the conservatives know how to make.

tomeg, every one of the Republicans wanted the court to "step into that role" and the court was all too happy to oblige.  Even if their decision on the Constitution had been legitimate, they had no business not returning the case to Florida for the Florida Sup Ct. to figure out how to fashion a remedy that would solve he constitutional problem while preserving to the extent possible the intent of Florida election as construed by its own courts, the courts that, under the federal system, are the final arbiters of Florida law just as the Sup Ct is the final arbiter of federal law.  This case alone is sufficient to demonstrate that the conservatives on the court don't buy into their own bogus doctrines for two seconds when their phony doctrine -- strict construction, federalism, original intent, textual analysis, respect for precedent -- stands between them and the outcome they want.

What Bush v Gore is precedent for is totally outcome driven, ad hoc jurisprudence, which is what the conservatives do under the cover of various phony doctrines of constitutional interpretation.

Roidubouloi: Actually, eveyone engages in ad hoc juridical practices. That is because the world is an anti - essentialist, anti - foundationalist entity. Some people believe that they are anti - ad hoc, such those that possess rigid judicial philosophies. But the ground shifts under them occasionaly, just as it does under the rest of us. You say nothing about liberals who for generations favored highly creative constitutional and judicial readings and then, when the federal benches and the Supreme Court began to be dominated by conservatives, suddenly began sounding the tocsin of judicial restraint. It is all rather amusing; rather like hearing liberals, who have long been in favor of deficit spending - and I have defintely heard this -  suddenly turn apoplectic when talking about red ink and the burden we are bequeathing our children, once a conservative takes the oath of office and runs up the tab.

Recall too, that John Paul Stevens, probably the most leftward of the justices on the court was in the majority on Kelo. Sometimes Antonin Scalia casts votes in favor of individual rights over against state power.  The world is a messy place and that is why ideologues of all stripes want to tidy it up. But I like it just fine in all of its messiness.

Well then, liberal, I am glad you have the court you want.

Both you and blackton seem to misunderstand Kelo.  It is a liberal decision, dissented from by the conservatives.  Kennedy, who is not reliably conservative, or liberal, made the majority.  Cut through the legal bullshit, if you know how.  The liberals voted for state power over property rights; the conservatives want to exalt property rights over state power.  That's why the first time I had this discussion with Blackton I couldn't even figure out why he regarded this decision as somehow athwart the basic contours of the liberal/conservative divide.  On the merits, Kelo is easily defended.

Scalia votes for individual rights in flag-burning cases where nothing is at stake.  His cynicism is so profound that I believe he does this purely to give himself bragging rights -- and I have heard him do this -- about how he follows the law to make decisions that he would not support politically.  As if.  It is purely a gambit.

I don't have the time or attention span at the moment for a full-blown discussion on liberal versus conservative jurisprudence.  Sure there is an ad hoc quality to both at times, but I am fully prepared to argue that liberal jurisprudence is both more coherent and more faithful to the Constitution.

But this I will say, no one who knows anything about law and is of at least modest intellect should take seriously the Republican/conservative pretension to be applying any sort of coherent legal doctrine.  That is a pure con job.  Save it for the legal rubes.

By the by, liberals are not in favor of deficit spending as a way of life.  They are Keynesians by and large and that is not in the slightest degree the meaning of Keynes' thinking on government spending.  I don't have time for a macroeconomics lesson either.  You will just have to work on that on your own.

liberal,

I apologize for getting a little snarky there.  No justification other than my general state of irritation that Hillary is still around causing trouble for the Democratic party.