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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Monday, June 11, 2018

Gratuitous Bush v. Gore Toss-In Alert

Adam Winkler's We The Corporation book has this tiresome trope:
A majority of justices, seven of the nine, held the recount violated the Constitution's equal protection clause because each county used its own, potentially divergent, standards to count votes.
Bush v. Gore never dies.  Where are these "seven" who "held" this? Where? The per curiam does claim:
Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See post, at 6 (Souter, J., dissenting); post, at 2, 15 (Breyer, J., dissenting). The only disagreement is as to the remedy.
Telling. Souter?
Justice Souter, with whom Justice Breyer joins and with whom Justice Stevens and Justice Ginsburg join with regard to all but Part C, dissenting.
Not, "dissenting in part."  Souter does say that the equal protection argument (unlike two others) is "a meritorious argument for relief." The different types of voting results here specifically (though cf. Stevens and RBG) are notably "wholly arbitrary." But, again, he "dissented." So, I'm unsure how he "held" anything. Likewise, given his druthers, he wouldn't have taken the case at all.* Basically, only dealt with the issue because the majority forced the issue: "But because the course of state proceedings has been interrupted [by five justices], time is short, and the issue is before us, I think it sensible for the Court to address it."

Put that aside. If Souter "held" something, he expressed things in a somewhat curious fashion.  What about Breyer?  Curiously:
Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, dissenting.
Now, maybe, Breyer's position is somewhat hard to parse given he joined this opinion, wrote his own and joined Souter's own. Nonetheless, again, he joined -- not "in part" -- Stevens' dissent. Why we basically never hear about a "6-3" split in Bush v. Gore is unclear to me.  If Breyer only joined (like Stevens/RBG did in respect to Souter's) part of the opinion, fine. But, he did not. So, even this portion doesn't solve things:
Even assuming that aspects of the remedial scheme might ultimately be found to violate the Equal Protection Clause, I could not subscribe to the majority’s disposition of the case.
Again, RBG's dissent (sic) shows how to split the baby:
Justice Ginsburg, with whom Justice Stevens joins, and with whom Justice Souter and Justice Breyer join as to Part I, dissenting.
Breyer didn't join all of RBG's opinion. It's somewhat curious that the last portion didn't get his vote, but as she noted: "I agree with Justice Stevens that petitioners have not presented a substantial equal protection claim" Stevens explains why a remedy isn't demanded and only then "assumes" it might be, still not joining the per curiam. Again, it is curious that Breyer "held" something here for which Stevens "dissented."  He could have, as is carefully done in any given case, only concurred to a portion of the dissent.
Justice Breyer, with whom Justice Stevens and Justice Ginsburg join except as to Part I—A—1, and with whom Justice Souter joins as to Part I, dissenting.
He did not. Even if Souter and Breyer would grant that a remedy is necessary, neither joined the per curiam. They did not "hold" anything. If they did, they should have -- as each of the dissenters did in relevant part regarding joining a dissenting opinion -- noted their partial agreement upfront. The standard form is "concurring in judgment in part" or the like.

If you disagree with my parsing, fine, but it's a gratuitous toss-in. 


* As all four dissenters agreed, in the words of Breyer:

The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume.
To belabor the point, Breyer's language as to the need for the remedy is weaker than Souter's. He only takes a fraction of the equal protection claim seriously, noting that part "does implicate principles of fundamental fairness" but hedges on just what is necessary taking everything into consideration ("may well have counseled").  Held? Uh.

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