The Ninth Circuit’s petulance

There’s lots to read out there about the 9th Circuit Court of Appeals decision to delay the California recall election. Bruce Ackerman’s New York Times op-ed from yesterday, and Robert Hochman’s Chicago Tribune op-ed today both offer legal explanations for why the 9th Circuit ruling is such a bad decision. However, the most honest thing I’ve read on this is Dahlia Lithwick’s analysis in Slate of the motivations behind the decision. The key grafs:

The real problem with all this analysis is that the high court expressly disallowed this kind of application of Bush v. Gore as precedent. With its now-famous disclaimer, “our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities,” the court explicitly limited the reach of the equal protection application to the 2000 election. The Supreme Court, seeking to wade into a political catfight yet indemnify itself from ever having to do so again, insisted that their holding was good for one ride only. The problem was that it was only a one-way ride—in favor of George W. Bush, and a lot of enraged liberals have spent the intervening years grinding their teeth over the unfairness of it all. We couldn’t riot, we couldn’t hunger strike. And there was no opportunity for payback; no opportunity to really stick it to the Supremes for rigging the election and using bad law to do it. Until now. There’s really only one way to read the panel’s decision from Monday. It’s a sauce-for-the-gander exercise in payback. Pure and simple. The panel not only refused to accept the Supremes’ admonition that the nation would not be fooled again; it refused even to address it. Applying Bush v. Gore again and again in the unanimous opinion, the judges told the high court that it has no power to declare a case a one-ride ticket and defied the court to step in again to tell them otherwise…. You can’t read the 9th Circuit panel’s decision without recognizing that it is neither brilliant nor subtle. The court did not need to halt the whole election to achieve electoral fairness. It could have enjoined punch cards, demanded all paper ballots, recommended more polling places, or punted back to the California secretary of state to suggest something other than the existing disparate systems. But the court went so much farther. They shocked the whole country by halting the entire recall. Why? Reading the opinion, it’s hard to escape the fact that the court seems to take pleasure in applying the broad and indefensible legal principle laid out in Bush v. Gore even more broadly and indefensibly. This wasn’t just a liberal panel trying to prop up an embattled Democrat. The 9th Circuit isn’t necessarily political, even where it’s ideological. No, the more likely explanation for the panel’s decision is that the court, which has been ridiculed, reversed, and unanimously shot down by the Supremes at rates that exceed (although not by much) any other court of appeals, just wanted this one sweet shot at revenge. This time, said the panel, it’s personal.

Wow. UPDATE: Drezner gets results from Robert Hochman, who e-mails this addendum to his Tribune op-ed:

Dahlia’s principal point was exactly what I was trying to capture (in an exceedingly tight way) when I said that the 9th Cir. was offering a poor reading of Bush v. Gore to “stick it to Republicans for the supposed evils of Bush v. Gore.” I, too, think that the Supreme Court made a terrible mistake, one with far reaching consequences, in deciding to base its Bush v. Gore decision on the Equal Protection Clause. The Article II rationale, adopted by the concurrence, would have been better. And the reason, in my view, has everything to do with the core point of my piece: it’s a bad idea to have judges interfering in election procedures, either during a campaign or while the votes are being counted. That could have been the theme of an Article II decision. The Florida Supreme Court adopted vote counting procedures out of whole cloth, casting aside established state election procedures. Article II prohibits this only in the context of a Presidential election. But the broader point could have been praised and used as a reason for reading Article II that way. And had the Supreme Court taken this route, it would have made less sense to accuse the Justices of having “interfered” in the election. Rather, the whole point would have been a higher court (the US Supreme Court) preventing a lower court (the Florida Supreme Court) from interfering in an election. The Court would have been accused of interfering anyway, but those of us who think that what the Florida Supreme Court did was an abomination would have been given stronger ground to defend the US Supreme Court.

Indeed.