On not getting over it

'We The People' should be the ones who decide our future, not the courts.

by: Andrew Koppelman

A few days ago, Justice Antonin Scalia, asked again about the charge of partisanship in the Supreme Court’s decision in Bush v. Gore to hand the presidency to George W. Bush, declared, “Get over it. It’s so old by now.” I’d like to examine the logic of this epigram, which has become something of a mantra among the decision’s defenders.

Yesterday, John McCain said:
“For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states. They display even less interest in the will of the people. And the only remedy available to any of us is to find, nominate, and confirm better judges.”

McCain went on to explain what kind of judges he had in mind: “I will look for people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist -- jurists of the highest caliber who know their own minds, and know the law, and know the difference.” Rehnquist, of course, cast the deciding vote in Bush v. Gore.

Geoff Stone points out that McCain offers a strange portrait of these three judges, who have in fact been aggressively activist. But I wish someone would ask McCain whether Bush v. Gore was an example of the kind of judicial restraint that he was calling for. Before that decision, I had thought it would be uncontroversial that the selection of the President was a question that should be decided democratically. (One of the more depressing results of the decision was the rush of conservative law professors, many of whom are self-styled originalists and advocates of restraint, to defend the decision. One can easily imagine what they would have said had the Court engaged in such contortions on behalf of Democrats. The dishonesty or self-deception of the Bush v. Gore majority is perhaps understandable: by reaching the result they did, they got something tangible that they badly wanted, a Republican president. But what, exactly, do scholars gain by mortifying their intellects in this way? They are worse than political hacks. They are public relations flacks for political hacks.)

Consider more closely the call to “get over it.” It calls on the listener to stop thinking about the dubious decision, to put it behind him and move on.

There are times when “get over it” is kind and friendly advice. If I was talking to a close friend whose child had died a year earlier, for example, I would do what I could to help him get over it, and might even tell him that that’s what he needs to do.

The other problem is that “Get over it. It’s so old by now.” isn't even accurate. More Americans and Iraqis are going to die next week because of the Court’s astonishing abuse of its power. It would be nice if it were so old. But it’s not. So if you’ll forgive me, I’m not planning to get over it.