Wednesday, October 02, 2002

Supreme Court, and a little about Torricelli Kyle Still has a well-thought-out prediction on an upcoming Supreme Court case, which makes me think that perhaps the time has come for me to strive for a little less glibness and a little more erudition in my explanations of my predictions. Or maybe just continue with the glibness, with the invitation that anyone who wants more substance is welcome to have an email exchange with me. Whatever. We'll see how it feels in the morning.

Meanwhile, we see that the New Jersey S.Ct. has decided that the Democratic Party can replace Torricelli on the ballot. I haven't bothered to opine about the law applicable to this issue, because this is the area of law that most directly hits upon my cynical-realist view of law. It's not even that -- indeed, not mostly that -- many judges are subconsciously (or sub rosa) partisan in election disputes (though I think that some are). More than that, my horrible experiences in election law -- including a dispute over "who's the Chief Justice of the Alabama Supreme Court?" that had a too-brief appearance in the U.S. S.Ct. some years ago -- leads me to believe that winning the litigation, in such disputes, is not the critical thing. The critical thing is who owns the newspaper, and how they will spin it. If the leading media outlets in the affected jurisdiction want to say that one side or the other is the scum who are playing politics with the law, then that spin becomes perceived as gospel and will affect the outcome of upcoming elections more than any substantive issue ever could. This is further proof -- as if you needed more -- that lawyers themselves can never drive a "movement" or make real social/political change on their own; the most that lawyers can do is to tee up the ball for the organizers and real movement leaders. (This was one of the major themes, so I recall, of the autobiography of one of the last generation's "movement" lawyers, maybe Arthur Kinoy?). So, based on pure partisanship, I say: "Congratulations, Democrats, on that minor preliminary victory. Now comes the real battle, the battle for the editorial pages. Good luck!"

posted by sam 9:07 PM 0 comments

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