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When the Nevada Supreme Court decided Guinn v. Legislature, one would have thought from reading the popular press accounts that the court had forcibly displaced the State legislature by means of a violent coup d'etat. Newspaper accounts of the decision referred to it as a usurpation of power in violation of clear constitutional language, belittling the court in language sometimes more appropriate to the baseball bleachers than to serious editorial commentary. Following suit, politicized elements of the citizenry began a recall effort (seemingly unsuccessful as of this writing) directed at the court as well as joining the chorus of criticisms. Some of this criticism of the court apparently extended to quite non-judicial forums. Threats of physical harm were directed at some of the Justices, and the children of at least one Justice were subjected to bullying at school as a result of the decision.

If some of the attacks on the court had not taken such an ugly tone teetering on the brink of violence, the criticisms would be almost comical. The thought of the seven-member Nevada Supreme Court forcibly displacing the Legislature is more the stuff of Doonesbury than of real political threat, particularly in a state with an elected judiciary.

Essentially, the court merely decided a case presented to it in an adversarial posture by two antagonists. To be sure, the identity of the antagonists - the Executive and Legislative Branches of the Nevada government - distinguished the case from the run-of-the-mill tort or contract dispute. In addition, greater-than-usual electoral interest was present because one of the constitutional provisions under review was originally enacted by popular initiative. But perhaps more important for purposes of explaining the semi-hysteria that accompanied the decision is that the Guinn decision was portrayed as being a tax increase decreed by the judiciary. As I will explain, that oversimplified explanation is not entirely accurate. Most important, Guinn v. Legislature was a legitimate case, no more collusive than common social action litigation or inter-business contract disputes.

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4 Nev. L.J. 518 (2004).