Apparently the Right has decided that it isn't enough to attack any judicial decision they don't like on the basis of the fact that a judge made it, as per the recent charges over the California same sex decision. No, it is now necessary, from their point of view, to disconnect the law from the social structure altogether and make it, if possible, illegal.
A forerunner of what will soon become standard legal warfare against the law by the Right was noted by Scott Lemieux at Lawyers, Gun$ and Money. Scott found that a George Mason Univ law professor named Nelson Lund has decided to defend the Supreme Court's radically absurdist decision in Bush v Gore by claiming that the law can't be applied on questions of legality. Got that?
In one of the funniest law review articles ever written, Nelson Lund was not only one of a tiny handful of law professors to argue that Bush v. Gore was defensible on its own terms, he argued that it was a straightforward application of the Court's equal protection precedents. Apparently, the equal protection clause could be read expansively enough to prohibit different voting standards in different counties (and yet narrow enough not to apply to any of the countless other cases in which this occurs, including the process that gave Florida's electoral votes in 2000 to Bush, for reasons neither Lund nor the Court has ever bothered to articulate.)
But Scott is being nice. Prof Lund's little contribution to right-wing incoherency doesn't make quite that much sense. Here's the first graf, and it's a howler.
Bush v. Gore was a straightforward and legally correct decision. For more than a quarter century, the Supreme Court has treated the stuffing of ballot boxes as a paradigmatic violation of the Equal Protection Clause. Much more subtle and indirect forms of vote dilution have also been outlawed. Like some of those practices, the selective and partial recount ordered by the Florida Supreme Court may have been an inadvertent form of vote dilution. But that recount had effects that were virtually indistinguishable from those in the paradigmatic case. There is no meaningful difference between adding illegal votes to the count and selectively adding legal votes, which is what the Florida court was doing. The Supreme Court rightly concluded that the vote dilution in this case violated well-established equal protection principles.
Um...huh? So the FSC, by following the state law, was violating the law because Lund doesn't understand the difference between legal and illegal votes. Therefore, the law should not have been applied and the SCOTUS was right to knock it down.
I guess we're no longer allowed to have any law that confuses the easily-confused Prof Lund.
But the interesting argument to me is the one that says, essentially, that a decision which follows the law must be illegal.
Then again, when it comes to defending Fat Tony and his monumentally right-wing-spun decisions, you're going to find yourself heading down pretzel-logic cul-de-sacs like this one every time.
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