Carnival of Mirrors: Laurence Tribe's 'Unbearable Wrongness'
Summary (1 min read)
- 6 and whether the Court was legally prohibited from deciding the case at all.
- That is an extraordinarily serious accusation against the Court, and I say that the accusation is itself outrageous.
I. EQUAL PROTECTION
- First, Professor Tribe ignores the distinction that I and all the Justices have drawn between what the authors may think is the "original meaning" of various constitutional provisions and what the Court's cases say they mean.
- 42 Professor Tribe's effort to suggest otherwise requires him to conflate the doctrine of nonjusticiable political questions (which Souter and Breyer did not invoke) with arguments (which Souter and Breyer clearly did make) about the proper exercise of judicial discretion.
- As in most important constitutional cases, there was room in Bush v. Gore for reasonable disagreement about the best interpretation of the applicable precedents.
- I think it was a very easy case, but my strong objections to Professor Tribe's position are not based on that conclusion.
- Rather, I object to the extravagant terms in which he has denounced the Court, and to his claim that no reasonable defense of the Court's decision is possible.
- Justice Ginsburg did allude to the "traditional doctrine," but only in criticizing Chief Justice Rehnquist's Article II analysis in his separate concurrence.
- See Tribe, Unbearable Wrongness at 605 (cited in note 2), where a careful review of the quotation shows that Justice Breyer did not say that it was "legally wrong" for the Court to resolve the equal protection issue.
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Q1. What have the authors contributed in "Carnival of mirrors: laurence tribe's "UNBEARABLE WRONGNESS"" ?
In the very limited space that the editors have allotted, I could not possibly offer point-by-point responses to his many mischaracterizations of what I said in the two articles that he attacks.