The Center for an InformedAmerica

A Supreme Injustice, Part III


Dave McGowan
December 13, 2000

"The Supreme Court's 5-4 decision to stay all further recounts is nothing short of a judicial coup d'etat."
Loyola Law School professor Theodore P. Seto

The verdict, as they say, is in. The highest court in the land, the ultimate arbiter of the 'rule of law,' has spoken. And in a decision that should have come as a shock only to those who foolishly believe that the U.S. Supreme Court adheres to some kind of lofty legal principles, the unelectable son was essentially appointed as the next president of these United States.
        The opinion of the court, which was written and released in a manner which was obviously intended to conceal the fact that the decision was concurred with by the narrowest of majorities, was released just after 10:00 PM on Tuesday night. Though cloaked in pseudo-legal jargon, the majority opinion is clearly not based on any known legal principles, and certainly not the principles the Court has touted in the past.
        A thoughtful reading of the decision leads one to the inescapable conclusion that the Justices were desperately seeking any flimsy pretext with which to justify what was obviously a pre-ordained verdict. The document is, to put it bluntly, built on a bed of lies and constructed of the most transparently fraudulent legal arguments imaginable.
        The stench emanating from the pen of Chief Justice William Rehnquist, the presumed author of the unsigned majority opinion, was so extreme that all four of the dissenting Justices took the highly unusual step of issuing their own separate dissents, to be sure that their legal and moral outrage was clearly expressed. It should be noted here that two of those four were appointed by conservative Republican presidents, and can hardly be considered 'liberals.'
        In fact, persistent press reports to the contrary, there are no actual liberals on the U.S. Supreme Court. They are all 'conservatives.' Of course, alongside such overt fascists as Rehnquist and Scalia, some of them appear to have 'liberal' leanings, just as Bill Press and Paul Begala appear to be liberal when paired with the likes of Pat Buchanan and Oliver North on the cable 'news' talkathons. How liberal do you really have to be though to stand to the left of Atilla the Hun?
        Of the nine, the most reactionary of the bunch are Rehnquist, Antonin Scalia, and their silent partner-in-crime, Clarence Thomas. Only slightly less fascistic are Sandra Day O'Connor and Anthony Kennedy. These are, naturally enough, the five who issued the majority opinion, as well as the five who ordered the blatantly illegal and patently hypocritical stay of the recount order.
        Of these five Justices who would dare to appoint our next president, at least four of them are seriously compromised. It has been reported that two of Justice Scalia's sons are attorneys working for the formidable Bush legal team, one of them a partner of the reprehensible Ted Olson. It has also been reported that Justice Thomas' wife has been working on the prematurely formed Bush transition team, screening applicants for positions within the illegitimate administration.
        That fountain of leftist propaganda, The Wall Street Journal, has reported that Rehnquist was strongly bucking for a new Bush administration as well. It seems that the Chief Justice would like to step down, but will do so only with the certainty that his replacement will be suitably reactionary (come to think of it, if a Bush Administration is what it will take to rid the country of the aging fascist, maybe it wouldn't be such a bad thing after all).
        The Journal also reports that O'Connor would like to either step down herself, or perhaps step up to fill Rehnquist's slot, either of which would be premised on a Bush presidency. It's hardly surprising then that these four, joined by Kennedy, issued an opinion designed to bypass the will of the people and install Bush in the White House.
        It's not even surprising that the triumvirate of evil - Rehnquist, Scalia and the seemingly mindless (in a very literal sense) Thomas - issued a separate concurring opinion that expresses the belief of the fascist power trio that the majority opinion did not go far enough in ruling in Bush's favor. What is surprising, however, is that the fraudulence of the majority's opinion is so blatant that the remaining four Justices were moved to issue devastating attacks on the decision and its authors, particularly ringleader Rehnquist.
        And deservedly so. The majority opinion expresses in no uncertain terms the Court's contempt for the American people: "The individual citizen has no federal constitutional right to vote for electors for the President of the United States," unless granted that right by the state legislature. Even then, according to the Court, the State "can take back the power to appoint electors ... at any time." In other words, if you don't vote the way the State wants you to, you can simply be overruled.
        Furthermore, says the court, "the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work." It would just be too hard, the Court seems to be saying, to accurately count the votes of the people. And why bother? The people don't have a right to vote anyway (and certainly have no right to vote for Supreme Court Justices).
        For these reasons, the Court ordered that "the judgment of the Supreme Court of Florida is reversed, and this case is remanded for further proceedings not inconsistent with this opinion." The cynical author fails to note, of course, that the opinion is structured to deliberately preclude any further proceedings
        Justice Stevens begins his dissent by stating flatly that there were no substantial federal questions raised in the case. The Supreme Court, in other words, had no business even hearing the appeal. Stevens later duly notes that the "intent of the voter" standard is the law of the land in the vast majority of states, has been for decades, and has never been challenged before this election.
        Later still, he directly attacks the fundamentally anti-democratic and hypocritical nature of the majority ruling: "As the majority explicitly holds, once a state legislature determines to select electors through a popular vote, the right to have one's vote counted is of constitutional stature. As the majority further acknowledges, Florida law holds that all ballots that reveal the intent of the voter constitute valid votes. Recognizing these principles, the majority nonetheless orders the termination of the contest proceeding before all such votes have been tabulated ... the majority effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent - and are therefore legal votes under state law - but were for some reason rejected by ballot-counting machines."
        Saving the best for last, Stevens closes his dissent with the already infamous: "Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."
        Justice Souter begins his dissent by directly stating that the Supreme Court had no business hearing either of the appeals of the Florida Supreme Court rulings, and certainly had no business staying the recount order. Having accepted the case, though, "its resolution by the majority is another erroneous decision."
        Souter next notes that, while he is in substantial agreement with the other dissenting Justices, he "write(s) separately only to say how straightforward the issues before us really are." In other words, this was not some complex case where legitimate differences of opinion should exist. This was a very clear-cut case, providing no justification for the opinion issued by the majority.
        The Justice concludes his dissent by noting that fact: "the statewide total of undervotes is about 60,000. To recount these manually would be a tall order, but before this Court stayed the effort to do that the courts of Florida were ready to do their best to get that job done. There is no justification for denying the State the opportunity to try to count all disputed ballots now."
        Justice Ginsburg's dissent notes that there is "no cause to upset [the Florida Supreme Court's] reasoned interpretation of Florida law." She also notes that on only three prior occasions in U.S. history has the Supreme Court "rejected outright an interpretation of state law by a state high court." Directly confronting the hypocrisy and complete lack of integrity by the majority (who piously claim to support states' rights), she writes that:
        "Were the other members of this Court as mindful as they generally are of our system of dual sovereignty, they would affirm the judgment of the Florida Supreme Court." She further notes that "the Court's conclusion that a constitutionally adequate recount is impractical is a prophecy the Court's own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States."
        In what could be a telling detail, Justice Ginsburg closes her dissenting opinion with the words: "I dissent." Those who are familiar with the workings of the Supreme Court know that the traditional sign-off for such an opinion is "I respectfully dissent," which was used by the other three dissenting Justices. By flaunting tradition, Ginsburg appears to be signaling, and not too subtly, that she is particularly appalled by the actions of the Court.
        The longest and most blistering dissent was written by Justice Breyer. It begins: "The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume." With that, the Justice is just getting started.
        He later writes that: "there is no justification for the majority's remedy, which is simply to reverse the lower court and halt the recount entirely," and notes also that: "the majority's reasoning would seem to invalidate any state provision for a manual recount of individual counties in a statewide election."
        Still further on, he writes that: "The majority justifies stopping the recount entirely on the ground that there is no more time," while duly noting that: "the majority reaches this conclusion in the absence of any record evidence that the recount could not have been completed in the time allowed by the Florida Supreme Court."
        Questioning Rehnquist's supposed commitment to states' rights, Breyer writes: "I cannot agree that the Chief Justice's unusual review of state law in this case is justified ... Moreover, even were such review proper, the conclusion that the Florida Supreme Court's decision contravenes federal law is untenable."
        Defending the decisions of the Florida Supreme Court, he notes: "Since only a few hundred votes separated the candidates, and since the 'undercounted' ballots numbered tens of thousands, it is difficult to see how anyone could find this conclusion unreasonable - however strict the standard used to measure the voter's 'clear intent'."
        In conclusion, Breyer echoes the warnings of Justice Stevens: "But we do risk a self-inflicted wound - a wound that may harm not just the Court, but the Nation ... What it does today, the Court should have left undone. I would repair the damage done as best we now can, by permitting the Florida recount to continue under uniform standards."
        As previously noted, Rehnquist, Scalia and Thomas submitted an additional concurring opinion, which appears to be the decision that the trio first tried to sell to the other Justices as a proposed majority opinion. It explicitly reiterates the notion that the people have no right to vote. It also notes that "Florida statutory law cannot reasonably be thought to require the counting of improperly marked ballots," a rather remarkable statement.
        The most memorable passage claims that: "the Supreme Court of Florida ordered recounts of tens of thousands of so-called 'undervotes' spread through 64 of the State's 67 counties. This was done in a search for elusive - perhaps delusive - certainty as to the exact count of 6 million votes. But no one claims that these ballots have not previously been tabulated; they were initially read by voting machines at the time of the election, and thereafter reread by virtue of Florida's automatic recount provision. No one claims there was any fraud in this election."
        This is an absolutely stunning collection of lies and distortions. The plain and simple fact is that the Justices, and everybody else involved with the case, are fully aware that the "so-called" undervotes have never been counted. That is an indisputable fact. And while it may be true that the media and Washington have bent over backwards to avoid making any claims of fraud, a broad spectrum of the American people know better.
        As I was finishing up this article, the surreal spectacle of a smiling Al Gore delivering his 'concession' speech began. Not surprisingly, Big Al made every conceivable effort to legitimize the U.S. political system and the presidency of George Bush, cloaking his entire speech in God, Democracy and Country, as though what has occurred in the last five weeks has anything to do with God or democracy.
        Following closely on the heels of the pathetic performance by Gore was George W. himself, our new duly appointed head-of-state. Bush wanted to make sure we all knew that he "was not elected to serve one party, but to serve one nation." That's funny, because the last time I checked, he hadn't been elected to serve jack-shit.

        Postscript: The day after Bush officially became the president-elect, he and his wife attended a private service at the Tarrytown United Methodist Church in Austin, Texas, along with a few hundred friends and staffers. During the sermon, the Reverend Mark Craig told Bush that: "You have been chosen by God to lead the people." Prior to hearing this, I had assumed that William Rehnquist only thought he was God. My bad.
 
 

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