Supreme Injustice: How the High Court Hijacked Election 2000
Supreme Injustice: How the High Court Hijacked Election 2000
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Supreme Injustice: How the High Court Hijacked Election 2000
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For Chief Justice Rehnquist, even discriminatory intent hasn’t necessarily been enough to invalidate a law. Rehnquist’s philosophy has always been that as long as the state has a rational basis for the law - even if Rehnquist has to imagine such a basis himself — then the law is valid. In this case, however, that principle played no role whatsoever.
Another serious problem with the decision is that, if taken seriously, it undermines the very principle of judicial review itself. Back in the case of Marbury v. Madison, the Supreme Court determined that it had the authority to decide if laws were constitutional or not. This is what made the Court the guardian of the Constitution, by ensuring that the various laws passed do not violate it.
In the decision of Bush v. Gore, that has been turned on its head. According to the Court’s confusing decision, because the Constitution delegates authority to the legislature to choose Electors, the courts cannot interfere in this in any way. Thus, even if the legislature decided to ban gay or Catholic Electors, the courts cannot do anything. Perhaps that is one of the reason the justices took great pains to say that their decision could not be used for further precedents. Convenient, no?
All of the above makes a valid case for the idea that the decision reached by the five justices was not based solely on legal merit. So what was the basis? This comes to the question of motives and Dershowitz provides possible motives for all five.
For Justice Sandra Day O’Connor, it may have been retirement plans. She publicly expressed disgust at the idea of a Gore presidency because she wanted to retire to Arizona, but she didn’t want a Democratic president to name her successor. Justice Kennedy apparently wants to be Chief Justice when Rehnquist retires, only likely with a Republican president. Justice Thomas is still infuriated at what happened during his confirmation hearings and is itching to get revenge against many of the Senators — Gore and Lieberman among them.
Is any of that enough to warrant a charge of wrongdoing? Absolutely — in judicial ethics, even the mere appearance of impropriety requires that a judge remove themselves from a case. It doesn’t matter if the judge can honestly say that their decision was based solely on the law: the fact remains that the decision cannot be trusted and, hence, the judge has violated ethical rules.
O’Connor definitely has the appearance of having had something personally to gain from a Bush presidency, which means that she, at the very least, should have removed herself from the case. By participating, she has violated important judicial ethics (which is sadly unsurprising, because she has been warned an unprecedented two times about such violations since joining the High Court). With the other four, the case isn’t quite as clear; but it is possible that a couple of them should have refused to participate.
Some attempt to dismiss this book as simply a matter of “sour grapes”: Dershowitz wanted Gore to win, is mad that Bush became president, and so is now attempting to disparage the victory in an effort to attack Bush. It is true that Dershowitz wanted Gore to win — he makes no attempt to hide that. But the rest of the accusation completely misses the point of the book.
Dershowitz makes it very clear that none of his arguments rely upon the idea that Gore did, in fact, get the most votes in Florida — even if we assume that Bush got the most votes in Florida and would have legitimately won if the hand recounts had been allowed to proceed, none of Dershowitz’s legal arguments would be affected.
Supreme Injustice: How the High Court Hijacked Election 2000 |
And that is because they are legal arguments, not electoral arguments. The course of the election is ultimately irrelevant. What is relevant is the nature of the legal decision made: Was it consistent with prior decisions? Was it consistent with the justices’ legal principles? Was it made in the absence of personal interest or gain? The answer to those questions is “no” — and because of that, the decision must be judged as bad in every sense of the word.
The five-justice majority cheated. This isn’t a decision which can simply be rejected as being wrong-headed or as applying bad legal philosophy, as many might legitimately argue about other controversial decisions. No, this is a corrupt decision, because the justices violated their own legal principles and philosophies in attempt to reach a decision in which they had personal, vested interests.
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