As Andrew Rosenthal points out in this New York Times blog, retired Justice John Paul Stevens has been anything but reticent about expressing his views since his retirement. In an address to the American Law Institute, Stevens added to his 35-page dissent in Bush v. Gore with observations like this one:
While the court's per curiam opinion is misleading in other respects, for example, its implicit suggestion that the failure to order a recount of the estimated 110,000 overvotes was error despite the lack of evidence or argument suggesting how one could tell which candidate the voter intended to support, the principal point I want to make this morning concerns the absence of any coherent rationale supporting the opinion's reliance on the equal protection clause.
The equal protection clause requires states to govern impartially and has particular force in protecting the right to vote. There must be a neutral justification for rules or practices that discriminate for or against individuals on the basis of identifiable characteristics, including groups of individuals that are defined by race, by political affiliation, or by their residence in a particular location. ...
My principal purpose in calling your attention to the court's reliance on the equal protection clause in Bush against Gore is to emphasize how that provision of our Constitution, properly construed, would invalidate an invidious form of political behavior that remains popular today. If a mere defect in the standards governing voting recount practices can violate the state's duty to govern impartially, surely it must follow that the intentional practice of drawing bizarre boundaries of electoral districts in order to enhance the political power of the dominant party is unconstitutional.
Stevens' connection of Bush v. Gore to gerrymandering caused Rick Hasen at Election Law Blog to wonder why Stevens did not make the same connection in his dissents in redistricting cases post-Bush v. Gore. So far, no other substantive comment on any law blogs. Here's the transcript of the speech PDF.
