In its endeavor to bestow legitimacy upon George W. Bush, the United States Supreme Court sacrificed its own legitimacy. The decision of
Bush v. Gore has all the appearance of an argument assembled in defense of a foregone conclusion. Such a practice, called "rationalization," while routine in marketing, public relations and the arguments of trial lawyers, has no place on any judicial bench, least of all the Supreme Court.
I am not a lawyer or a legal scholar. However, with four decades of experience teaching
philosophy and also publishing in and editing for refereed scholarly journals, I daresay that I can spot a
phony argument. And
Bush vs. Gore is a beaut -- riddled through and through with gratuitous assumptions, fallacies, inconsistency and incoherence. The Supreme "Gang of Five" left their partisan fingerprints all over this document.
What will our great-grandchildren read about this election sixty years from now in their high school history books when it is reduced a sentence or two,
sans political spin, and sans supporting argument? Just this: "George W. Bush became President when the Supreme Court ordered the interruption of a vote count in Florida that appeared likely to result in the election of his opponent, Albert Gore." Come to think of it, that about summarizes what millions of people abroad understand about the election at this time. On the face, it looks like a betrayal of democracy -- the sort of thing that caused the Serbs to fill the streets of Belgrade and to throw out Milosovic. Sadly, when we look more closely at the Supreme Court decision,
v. Gore (which I have just read, front to
back, and linked here), and consider the precipitating events, that summary sentence appears to be close to the mark.
December 12, 2000 is a date that will live in judicial infamy.
The Gadfly's Case Against Bush v. Gore
The per curiam decision thus summarizes the complaints of the Bush team:
The petition presents the following questions: whether the Florida Supreme Court established new standards for resolving Presidential election contests [violations cited], and whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses. (p. 4)
Then the ruling: "With respect to the equal protection question, we find a violation of the Equal Protection Clause." (P. 4). Accordingly, the Florida Supreme Court was reversed and remanded (p. 13), with no time available for remedy, thus effectively ending the recount and handing the election to Bush.
In short, there are three complaints: (a) that the Florida Supreme Court was "making new law," (b) that it was violating Due Process, and (c) that it was denying Florida voters "Equal Protection" (under the 14th Amendment). The third complaint was the specific justification for the reversal. However, we must remember that concern about "making law" prompted the Supreme Court of the United States (hereafter SCOTUS) to vacate an earlier Florida
Supreme Court ruling to waive the November certification deadline. In that
earlier decision, there was no mention of "equal protection"
concerns. Thus the Gore legal team was blindsided by SCOTUS.
Consider first, the "Equal Protection" argument.
Bush v. Gore addressed the issue of the disposition of approximately
60,000 Florida ballots that were not tallied due to "undervoting" – i.e., a failure of counting machines to register a vote for the Presidential electors. The Gore team wanted to tally such ballots in three Florida counties. The Florida Court countered with a requirement that all 67 counties be included, which the Gore side promptly accepted.
It is important to remember that the issue of the "undervote ballots" was only one of many "voting irregularities" in the Florida election, all of which deprived Florida voters of "equal protection" and absent any one of which would have resulted in a Gore victory. We are all-too familiar with them:
The Republican Secretary of State, Katherine Harris, contracted a private firm with GOP connections to "purge" the voting rolls. As a result, many individuals who had moved, were deceased or were felons, were removed (correctly) from the rolls. But in addition, many thousands of eligible voters (disproportionately from Democratic precincts) were removed from the rolls, only to discover their disenfanchisement too late on election day.
Republican election officials in two counties (Seminole and Martin) invited GOP operatives into secured areas to illegally correct invalid applications from Republican voters, while Democratic party officials were not offered comparable opportunities.
Minority voters faced numerous inconveniences and harassments: polling stations moved, police blockades and checkpoints, multiple ID requirements (contrary to law),
Ballot design and voting machines varied, county by county, and even precinct by precinct. Wealthier precincts tended to use "scanning" machines (i.e., "SAT type") which were 99.3% accurate. Poorer precincts were more likely to use the punch-card system (97% accurate).
The last of these (the punch-card ballot errors) might have been remedied by a hand recount, as legally indicated in Florida and thirty-two other states (including Texas, in a law signed by Gov. G. W. Bush).
SCOTUS perversely ignored all these violations of equal protection, and applied still another – variable standards of ballot assessment – as their excuse for shutting down the recount.
Of course, by allowing no undercounted ballots to be tallied, the Court's "remedy" for "unequal protection" of the voters who attempted to register their choice, was "no protection." As Jonathan Chait wryly put it: "Some of the orphans are receiving more porridge than others: Let's cut them all off!" (See
"We Dissent," this site). The Supreme Court majority admits that no ballot procedure is perfect, then perversely uses this imperfection as an excuse to disenfranchise all voters whose ballots do not register in the tallying machines. Never mind that there are statutes in place in Florida (and 32 other states) designed to effect a "superior" remedy – hand counting of the ballots. SCOTUS, which scolds the Florida Supreme Court for "making new law," does not hesitate to do so itself.
Past the apologetics of their opinion, this was the likely thinking of the Bush
legal team and their collaborators, the SCOTUS "Gang of Five:" Scan tallies
(99+% accurate) and punch-card tallies (97% accurate) are clearly "unequal."
But a remedy would probably turn the Florida election over to Gore. So never mind that.
Ditto the inequality between GOP and Democratic absentee ballots in Seminole and Martin counties (due to illegal activities by public officials).
Ditto the unequal voting opportunities in the predominantly black precincts.
Ditto the unequal "purging" of the voting rolls (hence disenfranchisement) by the hired GOP guns.
There remains the question of the untallied "undervotes" which might give the election to Gore. What to do?
AHA! How about "unequal protection" of voters in "hanging chad standard" counties vs. voters in "dimpled chad counties." Eureka! That way we keep all those votes off the state totals. D'ya suppose the public will buy it?
The rest is history.
The conservative justices sudden concern for "equal protection" is touching, in view of the recent history of SCOTUS. In 1972
(Furman v. Georgia), an earlier court suspended capital punishment in the United States, in part out of concern for the clearly demonstrable statistical fact that minority and poor individuals were disproportionately executed – receiving unequal defense in the trial and appeals courts. In several Supreme Court cases in and about 1976 (notably
Gregg v. Georgia, 1976), the force of these "equal protection" arguments faded as capital punishment was reinstated in the United States.
Some defeated liberals suggest that this dark cloud of judicial intervention may have a silver lining: After all, now that SCOTUS has proclaimed "dimpled chads" vs. "hanging chads" a violation of the equal protection clause, then surely aggrieved minority communities can, with this precedent, claim "unequal protection" due to the use of archaic and ill-functioning ballot devices in their precincts.
Don't count on it. In an extraordinary aside, the Gang of Five proclaimed "our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." What "complexities"? They do not elaborate. And why should this landmark decision not serve as precedent? They offer no further explanation. One cannot help but suspect that "equal protection" was trotted out,
ad hoc, to do a one-time-only political task, namely to elect George W. Bush, whereupon it was put back into a "lock-box." safe from employment by aggrieved minorities.
Next, the due process argument:
This argument, combined with
equal protection, handed the Supreme Court "Gang of Five" a "no-win' dilemma to deliver to the Gore team. (a) The Florida court might, in accordance with Florida statutes (which places standards in the hands of the counties), forebear from establishing a single standard. In which case, Florida violates the "equal protection" clause and the hand count must be stopped. (b) On the other hand, the Florida Supreme Court might establish a single standard. But then the court would be legislating from the bench, as it was warned not to do in SCOTUS' earlier vacating decision. So stop the recount. As we know, the Florida court was impaled upon the first horn of the dilemma: it scrupulously followed Florida law by leaving the standards to the counties, whereupon SCOTUS judged this "unequal protection" and halted the recount.
But this was, in fact, a trilemma since both of the first two options violated a third principle, namely (c) the sanctity of the ballot – the right of all voters to have their votes counted. And this final principle, being supreme in both the Federal and Florida constitutions, trumped the others. When laws conflict, it is the function of the courts to determine priority and rule in favor of the superior legal principle. And this is precisely what the Florida Supreme Court did – ruling that
all the ballots were to be counted. But that option would have defeated the operative extra-legal objective of the Gang of Five, namely the election of George W. Bush. And so, conveniently for their purpose the "trumping" principle, namely "the sanctity of the ballot" is conspicuously absent from their argument.
Before we continue with more specifications of our indictment, due credit and praise must be given to the four dissenters: Justices Stevens, Souter, Ginsburg and Breyer. They resisted what must have been significant pressure to present a unanimous, or at least an overwhelming majority opinion. Instead, the minority left the culprits with the weakest of majorities, as
each wrote harshly critical dissents. These four escape from the debacle with their honor and integrity intact – indeed, enhanced.
(Excerpts from the dissenting opinion, plus other quotations on the case, may be
found at "We Dissent"
at this site).
The December 9 SCOTUS ruling to halt all hand recounts gave clear indication that "the fix was in." In a statement straight out of Alice in Wonderland, Antonin Scalia
wrote, in effect, "verdict first, arguments afterwards." In advance of the submission of briefs and oral arguments, Scalia proclaimed that there was a "strong probability" of a ruling to reverse the Florida court order to resume the counting. As justification for this extraordinary opinion, Scalia and his four cohorts cited the danger of "irreparable harm" to Bush. No mention was made of the "irreparable harm" to Gore that was, in fact, caused by the order to halt the hand counts. Scalia's justification was, quite frankly, insultingly paternalistic and arrogant:
The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.
Like the Jack Nicholson's "Colonel Jessup" in "A Few Good Men," Scalia said, in effect:
"America – you can't handle the truth!."
The perfidy of the Supreme Court was further exemplified by their imposition of the Dec. 12 "deadline." The majority said that it accepted, "in principle," the remedy of hand recounts. Then it denied Gore that remedy by insisting on the Dec. 12 deadline - the date of their decision. Having denied Gore a recount by that date, due to their previous stay, they then used that deadline as a pretext to end the contest. As many legal scholars have commented, and Justice Breyer suggested in his dissent, the court had the power to extend that deadline to December 18. So why not? Obviously, the only reason for the early deadline was that it effectively handed the election to Bush. But they couldn't say that, and thus threw in specious and unsustainable arguments in their opinion.
Finally, "strict constructionism," is the principle that "conservative" presidents and members of Congress insist upon in their judicial appointments. That principle mandates "federalism" or "state's rights" – the right of state governments to run their own internal affairs, including their elections. In particular, as the Florida Supreme Court pointed out, according to federal statute (Article 3, Section 5 of the U. S. Code), state law enjoys "final determination of any controversy or contest concerning the appointment of all or any of the [presidential] electors of such state by judicial or other methods or procedures."
Bush v. Gore put the "liberal" justices, most notably Justice Ginsburg, in the position defending the "states rights" of Florida, which the "constructionist" majority successfully assaulted and over-ruled – in this case only.
There is still more, but at this point we will rest our case and refer the reader to our
collection of additional comments: "We Dissent."
In Sum: "The Gang of Five" faced this practical problem: How to block a Gore election (a) without allowing that blockage to appear to be the operative objective of their decision (which, in fact, it was), (b) without denying the legitimacy of hand recounts in disputed elections (as 33 states allow), and (c) without setting a precedent that might come back to undermine their political agenda. They managed to touch most of the required bases, but in so doing, their required written opinion was, of necessity, a patchwork of inconsistencies, gratuitous and unsupported assumptions, and strained and invalid arguments.
Bush v. Gore was a judicial disgrace – as the critically astute observer can determine today, and as history will surely judge after partisan apologetics has faded into insignificance, leaving the words of the majority opinion as the sufficient and overwhelming evidence of their culpability. But it is now our task, as contemporary victims of that ruling, to begin at once to repair the damage.
Should the Supreme Court ruling be regarded as legitimate?
Clearly Al Gore thinks so, for in his concession speech he said: "Let there
be no doubt, while I strongly disagree with the court’s decision, I accept it.
I accept the finality of this outcome ..." Gore thus performs,
with dignity and eloquence, his appointed role in this drama. But should
we, as ordinary citizens, also "accept the court’s decision"? The
question reminds me of a military maxim: "You salute the uniform, not the
man." Similarly, I suggest that we support the institution of the Supreme
Court, mindful that five of the current members have disgraced that institution.
Out of respect for the Court as an historical and Constitution institution, I
would urge that deliberate effort be made to purge the Court of the unworthy
justices that now sit on it. Impeachment may to be too extreme a remedy, since
there appears to be no sustainable grounds thereof. (But that is an issue for
others who are more conversant with the law to determine). Time and attrition is
the only feasible answer. In the meantime, the Rehnquist court must be
quarantined. Appeals thereto should be avoided. And of primary importance, no
new justices should be confirmed during the term of this illegitimate
Presidency. (Unless, of course, George Bush somehow proposes a worthy candidate
– however unlikely). Above all, Antonin Scalia must not be confirmed as
the next Chief Justice. Forty-one determined Democratic Senators can accomplish
this. But, it may be argued, if one or two or even three vacancies result, the
Court may be crippled. Normally, that would be a misfortune. However, in light
of Bush vs. Gore, any diminishing of this court can only be regarded as
an advantage to the body politic.
The principles of separation of powers, the supremacy of law, and "equal
justice under law" (carved on the portico of the Supreme Court building)
remain as what Justice Breyer correctly calls "a public treasure."
Heretofore, the Supreme Court of the United States, through its illustrious
history, has been the guardian of that treasure. On December 12, we learned that
five flawed and politically motivated mortals have debased and devalued that
treasure. It will take a long and determined effort by Congress and (presumably)
George Bush’s successor to restore the Court to its institutional integrity.
And that restoration must presumably follow the departure of most, if not all,
of the "Gang of Five" that brought it into disrepute last week.
In short: we support the Supreme Court as an institution, and consistent with
that support we urge its reform – most urgently, by driving the corruptors
from that temple of justice.
What, then, about our "President-Select," George W. Bush? Again,
Congressional Democrats are following Gore’s lead in urging that we
"stand together behind our new President." So too the editorials in
the leading print media.
I respectfully dissent. Again, the office deserves our respect, but
not the man who occupies it, for he is, quite frankly, a usurper. A fair contest
of the Florida election, according to state law and free of Constitutionally
unwarranted and politically motivated interference by SCOTUS, would have
resulted in a Gore administration. Bush is in office due to an election that was
stolen under the cover of tortured law with the connivance of politically
But opposition to the man must not be allowed to damage the office. There
must be no repetition of the impeachment fiasco that bedeviled the Clinton
Administration. Instead, Congress should treat Bush as a "caretaker
President," denied significant innovations and allowed only to carry out
"housekeeping" governmental functions. His wings must be further
clipped by a change of Congressional control in two years, and he must be tossed
out of office in four years. (Pity it is that we don’t have the European
option of calling new elections). Only then will the United States be cleansed
of the stain of this stolen election. Above all, no new appointments to the
Supreme Court should be allowed in the next four years – unless (per
improbable) the nominee is authentically a-political and distinguished.
The rule of law in the United States has been betrayed at its very heart: The
Supreme Court. The only immediate mitigation of this outrage is the requirement
upon the Court that publish its justifications. In that document lies the
condemnation of the majority that substituted its political agenda for the will
of the Florida voters. And when the partisan spin and apologetics are all
forgotten, history will, through that document, condemn forever the betrayers of
the faith: Rehnquist, Scalia, Thomas, O’Connor and Kennedy.
For two-hundred years, the United States of America and its Constitution have
been a beacon of liberty and justice to the world. We now are entering a new era
with a purchased and privatized Congress, an illegitimate President, and a Court
that has subordinated its role of protector of "Equal Justice Under
Law" to that of an obedient facilitator to wealth and power.
All that stands in their way of further degradation of our democracy is the
active indignation and resistance of a betrayed electorate. Absent that, the
light of liberty and justice might well be extinguished.
Do not go gentle into that dark night
Rage, rage, against the dying of the light.
Postscript: Most of the criticisms in this
piece came to my mind independently as I first heard the news
reports and read the transcript of the December 12 Supreme Court
opinions. Soon thereafter, I encountered virtually all of
these critical points in the published journalistic and academic
commentaries. I am very grateful for this,
since it proves one of our central contentions: namely, that the majority
opinion displays appallingly weak and contrived justification, apparent to any
moderately critical reader. On another note, I was rather pleased with
my name for the majority, "the Gang of Five," until I discovered
that the phrase has already been adopted by Amy Easton, author of the book
"The Gang of Five: Leaders at the Center of the Conservative
Copyright 2000 by Ernest Partridge
Permission is hereby given for free
use, copying and distribution
with the proviso that all copies contain the name and website of the author:
"The Online Gadfly," www.igc.org/gadfly