The recent U. S. Supreme Court decision in Bush v. Gore has called into question many important issues and will have far-reaching consequences for the history of the United States and the world. People have a right to question and understand how this decision has violated the principles of equal justice and democracy that members of the court claim to hold dear. Were the considerations of impartial justice cast aside for partisan political advantage? Some have argued that Justice Antonin Scalia should have recused himself for two reasons. First, he has stated that he hopes to be appointed chief justice if Bush is elected and that he might resign to make more money if Gore is elected. Second, one of his sons works for the same law firm as that of the lawyer Theodore Olson, who argued the case for the plaintiff. Some have also argued that Justice Clarence Thomas should have recused himself, because his wife was working at the time on the Bush transition. Did these justices place their personal political advantage over impartial justice?
Conservative members of the U. S. Supreme Court have prided themselves on upholding the principles of federalism and have argued many times that the federal courts should restrain themselves from interfering in state and local activities unless clearly delegated constitutional powers authorize them to do so in order to protect human rights. Yet in this case five members have reached out to interfere with an election that was supposed to be decided by a state according to its laws. It is hard to imagine that they would have done so if it were Gore or a Democratic who was appealing to them. Did the conservative members of the U. S. Supreme Court cast aside their most sacred principles in order to intervene in a political election?
In granting a stay to stop the counting of under-votes in Florida on Saturday December 9 five members of the court claimed that George W. Bush would suffer irreparable harm if the stay was not ordered. Since Florida had already certified Bush electors, the only possible harm he could suffer would be if the counting of the under-votes found that he had in fact received less votes than Albert Gore. Yet the stronger argument that Gore and the voters were much more likely to suffer irreparable harm if the count was stopped was ignored. Was this decision not based on partisan political advantage rather than objective justice and respect for democratic principles?
Seven members of this conservative court found that the method of counting the under-vote ballots had constitutional problems because of discrepancies in the standards of determining the intent of the voter from county to county. Yet this was still in process of being determined by the judge supervising the process and was in fact pre-judged by these seven members of the court. The U. S. Supreme Court had warned the Florida Supreme Court that it must follow the will of the Florida legislature, and the Florida Supreme Court did its best to do that by following the only standard the legislature had made, namely the clear intent of the voter. Ironically, if the Florida Supreme Court had suggested any other standard it probably would have been rebuked for doing that by the U. S. Supreme Court. Does this not show that U. S. Supreme Court was applying a Catch-22 order that in effect blocked Florida from counting these votes no matter how fair or just its process was?
Yet the much more important issue of equal protection of the law was completely ignored by the court majority. The Florida Supreme Court wisely ruled that the under-vote in all counties should be counted, not just in those counties that the Gore plaintiffs had requested. This shows that the Florida Supreme Court was not being partisan and was interpreting Florida law in a manner that was fair to all. The most important equal protection issue here is that voters in precincts with faulty voting machines were discriminated against, because more of their votes were not counted than in wealthier precincts with more modern machines that threw out far fewer votes. Thus the very purpose of counting the under-vote was to provide at least less unequal protection. For the U. S. Supreme Court to ignore this far more serious concern and focus on the myopic standards for counting the ballots is like complaining about the speck in your neighbor's eye while ignoring the log in your own eye. Was this not based on partisan political advantage rather than a concern to protect the rights of all under the law?
Perhaps the most ironic hypocrisy in this case is the way the U. S. Supreme Court interfered to stop the vote counting that probably would have been completed by the "safe harbor" date of December 12 and then with only two hours remaining before that date was to expire told the Florida Supreme Court that they must respect that date as an absolute deadline for the contest. By blocking the Florida vote did they not in fact create a safe harbor only for the election of the George W. Bush while allowing thousands of voters' rights to be drowned in a sea of confusion? The justices of the Supreme Court are appointed by the President and confirmed by the U. S. Senate, all of whom are elected by the people. By over-ruling the votes of the people in order to appoint a Republican President is not the conservative majority of justices subverting the democratic process? If the U. S. Supreme Court does not respect the votes of the people, why should the people respect the votes of the U. S. Supreme Court?
This has been published in the book PEACE OR BUST. For ordering information, please click here.