27 September 2004

One More Week

In one more week, mob rule will no longer be safe—the Court's 2004 Term will begin. As you might have inferred, I accept Ely's countermajoritarian thesis as more than adequate justification for a tenured and powerful judicial system. This time around, I hope that at least one clerk has devoted some time to preparing extensive, thoughtful material in anticipation of an election challenge that must be decided quickly. The biggest problem with Bush v. Gore—well, aside from its very existence!—is that the justices' writings bear only an incidental relationship to reality. Perhaps it would have been better if the controversy had been over Cook County, Illinois, rather than Palm Beach County, Florida—because then the Court could not have so quickly and readily discounted voting fraud as either animus or fact. Instead, the judiciary punted the issue without seriously examining it—thus resulting in it remaining unanswered, which is worse than a possible finding I would not have liked.

I spent too much time in the government to either ascribe improper partisan/political motives to individual government actors without proof… or to ascribe laudable nonpartisan/apolitical motives to government agencies without equally compelling proof. I've seen how lower-level employees who honestly think they're just answering the questions their bosses want to hear can create a ripple effect leading to inaccurate decisions at high levels based on bad data and worse analysis. But far be it for me to be cynical.