In Gore Vidal's novel of post-World War I Washington, Hollywood, the
toughest ticket in town is a pass to the Senate debate on the League of
Five Supreme Court Justices are criminals in the truest sense of the word.
Historians are fond of quoting Lionel Trilling's famous observation that the United States lacks a conservative intellectual tradition and that this vacuum has weakened liberalism, encouraging intellectual smugness and flaccidity for want of a worthy challenge. If Trilling was right, then liberals are in for some lean years indeed. Never has the moral and intellectual bankruptcy of conservative intellectuals been on more prominent display than in the wake of the decision by five Supreme Court Justices to end the 2000 election in favor of their man. So muddled were the Justices' arguments, historian Alan Brinkley noted, that not one of them "command[ed] a majority even of the Court itself."
In embarking on this course in the dead of our political night, Rehnquist, Scalia and their fellow ideologues managed to sever one of the few nonpartisan links between the governed and the governing in our democracy. Witness the rare combination of outrage and sense of personal betrayal on the part of so many of the independent judiciary's most eloquent and devoted defenders--not only Alan Brinkley but writers like E.J. Dionne of the Washington Post, author/attorney Scott Turow, Jeffrey Rosen of The New Republic, Terrance Sandalow, the conservative former dean of the University of Michigan Law School, and Linda Greenhouse and Anthony Lewis of the New York Times, among others. The language of each of those writers, who variously termed the majority decision "grotesque" (Dionne), "judicial lawlessness" (Turow), a "disgrace" (Rosen), "incomprehensible" and "without any foundation in law" (Sandalow), "baffling" (Greenhouse) and a "rush to judgment [with] no credible explanation" (Lewis), serves as a warning that the Court's damage to itself and to our political system may very well outlast any damage "W" might be capable of inflicting on the Republic.
Now, even to discuss the merit of the Court's decision rationally, one must first grant its historic significance: A narrow 5-to-4 majority agreed to prevent a count of all potentially legal ballots in order to insure its man's ability to run out the clock on an arbitrarily imposed deadline. Yet in the world of conservative punditry, the Court's historic election-ending sleight-of-hand was somehow beside the point. 7-2, it's over, was the deliberately misleading headline above a dishonest Wall Street Journal editorial the next morning. The Court, it reported, had allegedly "decided 7 to 2 that the Florida Supreme Court's intervention violated the Constitution of the United States. The High Court ruled that the varying standards of assigning ballot wins, on view to the entire nation for a month, could not pass Constitutional muster." Even with a full day to sort matters out, William Safire could do no better. Writing beneath a Washington dateline but filing as if on Mars, the Times pundit somehow reported that "the whole Court did itself proud"; its alleged "7-to-2 agreement" represented "the product of fine legal minds thinking fast, unafraid of complexity, unsullied by rancor." Washington Post hatchet man Michael Kelly joined in this macarena of meretricious mendacity. Forget the 5-to-4 split ending the election, he advised. "The heart of the court's decision is not found in the fact that five conservative justices ruled to reverse the split decision rendered by four liberal justices on the Florida Supreme Court. The heart is found in two sentences from the majority decision: 'Seven justices of the court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court.... The only disagreement is as to the remedy.'" Thus did the renegade Justices "rescue democracy" in Mr. Kelly's universe.
The intellectual dishonesty of these statements is so transparent that, pace Lionel Trilling, it embarrasses this liberal to have to point it out. To a man, these pundits attempt to attribute to the dissenters beliefs each one specifically rejected in some of the most unvarnished language ever to emanate from the bench. Could Steven Breyer possibly have been any clearer than to write of the Court's decision, "What it does today the Court should have left undone"? And should David Souter, the seventh member of the conservatives' alleged majority, have used smaller words when writing, "There is no justification for denying the state the opportunity to try to count all disputed ballots now"? Should the Justices have published their dissents in Braille? Broadcast them on Rush Limbaugh or the Drudge Report?
Well, never mind. If there is one sure bet in American politics, it's historical amnesia. Soon the machinations of James Baker, Jeb Bush, Katherine Harris, Tom DeLay and their allies inside the violent mobs of Miami and the velvet robes of the nation's capital will evaporate into the endangered ozone layer. Al Gore has already brilliantly played his assigned role in the new chapter, moving Chris Matthews almost to tears by giving, "beautifully," what the hysterical MSNBC pundit celebrated as "the most prostrate concession speech I've ever heard."
"The vast majority of the people in America," Tim Russert advised, want to wake up and say, "You know, we went through something extraordinary and yet we saw last night the peaceful transfer of power--no troops in the street, no tanks rolling down Pennsylvania Avenue...." Well, if the absence of soldiers seizing cable networks is the ultimate standard of meaningful democratic empowerment, then Russert is right, we're not doing half bad; not up to the standards of, say, the Grecians, but we sure beat the heck out of the Kosovars.
In closing, I leave you with the wise words of Weekly Standard editor William Kristol, who was turned into an accidental prophet by virtue of his magazine's inopportune deadline. Our next President, Kristol wrote, "gained office through an act of judicial usurpation. We will not 'move on.' Indeed, some of us will work for the next four years to correct this affront to our constitutional order.... The best that can be hoped for under such circumstances is that this illegitimately gained presidency will give rise to a determination on the part of the people to resume the burden and the privileges of self-government."
The most enduring debate among twentieth-century legal analysts has been that between "legal realists" and those who believe in a reasonably strong version of "the rule of law." Though legal realism was often caricatured as reducing law to what the judge ate for breakfast, what it was really about was attacking the notion of the majestic impersonality of the judge, who was above politics. As Felix Frankfurter once put it, "as judges we are neither Jew nor Gentile, neither Catholic nor agnostic [and, presumably, neither Democrat nor Republican]. We owe equal attachment to the Constitution and are equally bound by our judicial obligations." Such claims were derided by realists like Yale law professor Fred Rodell, who viewed judges as no more than politicians in robes using legalistic mumbo-jumbo to write their politics into law. The argument has proceeded apace into the twenty-first century.
Almost everyone has accepted what might be termed a "soft" legal realism, one articulated by Frankfurter himself when he wrote in 1930 that "the controlling conceptions of the justices are their 'idealized political pictures' of the existing social order." Thus it is a commonplace to refer to "conservative" and "liberal" wings of the Supreme Court as a shorthand reference to two quite different pictures painted by the two sides in cases involving race relations, the autonomy of states, the death penalty and the like. Though judges are "political," the politics are "high" rather than "low"; that is, decisions are based on ideology rather than a simple desire to help out one's political friends in the short run.
Thus the legal attack on racial gerrymandering led by "conservative" judges probably favors the interests of the Democratic Party, while its defense by "liberal" judges probably enhances the power of the Republican Party (because it "packs" overwhelmingly Democratic black voters into relatively few Congressional districts). Ideology seems to be a better explanation of the two positions than a desire to maximize the interests of one or the other party.
The Court's decision in Bush v. Gore, however, seems an exercise in low rather than high politics. How can one take seriously the majority's claims that their award of the presidency to Bush is based on their deep concern for safeguarding the fundamental values of equality? This majority has been infamous in recent years for relentlessly defending states' rights against the invocation of national legal or constitutional norms. Bush v. Gore is all too easily explainable as the decision by five conservative Republicans--at least two of whom are eager to retire and be replaced by Republicans nominated by a Republican President--to assure the triumph of a fellow Republican who might not become President if Florida were left to its own legal process.
Of course, a consistent realist might point to tension between the generally nationalist, equality-protecting positions taken by the dissenters and their esteem in Bush v. Gore for state autonomy and, concomitantly, for the different standards being applied in various county recounts. It is decidedly "unrealist" to denounce one group of judges as behaving politically while praising another for simply following the "rule of law." Rodell or any other hard-core realist would deride any praise of the Florida Supreme Court for its wisdom in construing the Florida statutes. Those judges, too, could easily be depicted as Democratic partisans manipulating the law to serve their political favorite, Al Gore.
Few Americans, however, and almost no law professors, embrace such a complete legal realism, even if they rightly accept its "softer," more ideologically oriented version. Full-scale realism leaves one without the ability to argue that legal arguments can be assessed by their conformity to norms that can be invoked, by judges and others, to discipline the vagaries of political choice. But a strong critique of the Court's opinion that presupposes that it indeed violated basic norms and "descended" into raw politics would violate the premise of an unabashedly "political" realism.
That "hard" realism has nihilistic overtones might explain why we resist it so strongly, but it does not constitute a genuine refutation of the position. It is a sign of the truly unprecedented nature of Bush v. Gore that many liberal law professors, who have spent much of their career asserting the reality of the rule of law (and of the Supreme Court as what Ronald Dworkin terms "the forum of principle," even if they sometimes disagree with particular principles enunciated by the Court), find themselves wondering if they can continue to do so. Bush v. Gore may have superficially resolved a short-run political crisis, but it has triggered the deepest intellectual crisis--at least for people who profess to take the law seriously--in decades.
Though "activist" is what they've railed against,
These five Supremes said, "Just this once, let's try it.
We know which candidate we want to win.
We'll simply find some law to justify it."
In his speech conceding the presidential race to George W.
Supreme Court buffs are sentimentalists. We apotheosize the Court. When it decided to review the first Florida Supreme Court decision and other lawyers, non-lawyers and foreigners all insisted that "the fix is in," the "experts," including myself, confidently assured them that there was no federal question and that this states' rights-oriented Court would quickly dump the case. We were half-right; there was and is no federal question, but one way or other, Chief Justice William Rehnquist and his four allies were going to make sure that George W. Bush's shrinking lead would survive, even though a fair recount would probably make Al Gore the winner.
When Gore's lawyers began the contest phase of the proceedings on November 27, they ran into Judge N. Sanders Sauls, a Republican appointee marked by scandal and, to no one's surprise, lost. When a 4-to-3 majority of the Florida Supreme Court reversed Sauls and the recount began, quickly shrinking Bush's margin, it was time for the heavies to move back in.
First, the Bush lawyers asked for a stay. Within a few hours after the briefs were filed, Rehnquist & Co. brought the recount to a screeching halt with a 5-to-4 stay. When John Paul Stevens wrote a dissenting opinion, Antonin Scalia announced that the majority had already concluded--before hearing argument and within a few hours of reviewing more than 100 pages of briefs--that there was a "substantial probability" that Bush would win.
Scalia gave two reasons for the stay: to insure Bush's legitimacy if he won and to prevent "degradation" of the ballots because of frequent handling. "Legitimacy," however, is a political matter. What business is it of judges to insure legitimacy by blocking an accurate count of who actually won? Second, as a Florida electoral expert told the Miami Herald, it is not, as Scalia claimed, "generally agreed that each manual recount produces a degradation of the ballots," because the ballots are made to be handled frequently.
Monday's argument itself was almost anticlimactic except for one matter: Since the Florida court had made it clear that it was relying solely on the Florida statutes, what was the federal question? The answer came in a little-noticed throwaway line in a Bush brief--the equal protection clause. The issue had not been raised in the Florida Supreme Court, and normally the US Supreme Court will refuse to hear such an issue. But not this time.
And what was the argument? That the standards adopted by the Florida Supreme Court for determining which votes should be counted--"the clear intent" of the voters--was fine, but it didn't provide substandards. There would thus be variations in the way votes would be recounted from county to county and maybe within a county from one team to another.
As Justices Stevens, Ruth Bader Ginsburg and Stephen Breyer pointed out, the Florida court's failure to specify the precise manner for determining the intent of the voter is not unconstitutional. A majority of the states use the same "intent" standard, and no one has ever suggested that it was unconstitutional. Indeed, county-by-county variation is inevitable, given that optical scanners are used in some counties and punch cards in others. Obviously, the Florida legislature knew this when it adopted its electoral law. Yet it did not try to refine the test any further, though other states have done so. In any event, as Stevens pointed out, the disparities would probably have been eliminated because a single judge would resolve all objections.
Breyer and David Souter quite reasonably suggested that if a single substandard were indeed necessary then a remand to the Florida court to establish such a standard was in order. But now the Court's Catch-22 came into play: The Court had itself created so many delays that the December 12 deadline could not be met! No matter that the deadline was set only to avoid Congressional challenges and that the real deadline was December 18.
The rule of law has taken a terrific beating from the Supreme Court. Basic principles of adjudication have been trampled on: that the Court should stay out of partisan political fights as much as possible; that state courts are the arbiters of state law, one of the oldest principles in our jurisprudence and one that this states' rights-loving Court in particular might have been expected to honor; that a court doesn't create new doctrines that no one could have anticipated without giving the affected parties a chance to comply; that before hearing an argument, courts don't issue interim relief that could prove decisive unless absolutely necessary to avoid irreparable harm--hardly the case here since the results of the recount could have been set aside if necessary.
In 1857 the Court intervened in a bitter national dispute when it decided the Dred Scott case. It took decades for the Court and the country to recover from that. How long will it take this time, especially if further investigation confirms what we all already know--that this election was stolen under color of law?
I'm surprised at how many otherwise thoughtful people seem convinced that this election "makes no difference." In my very first Nation column, I quoted Justice Antonin Scalia, who, during a 1997 visit to Columbia Law School, stated publicly that if Brown v. Board of Education came to him as a case of first impression, he would vote against the majority. Most of the federal judiciary are Reagan/Bush appointees. There are an unprecedented number of judicial openings right now because of the unprecedented blocking of Clinton appointees maneuvered by the Republican-controlled Judiciary Committee. A sense of urgency thus prompted me to cull an unscientific sampling of lawyers, writers and human rights activists--all of whom feel that this is an important election in which to make one's voice heard.
Charles Ogletree Jr., professor, Harvard Law School: "The most important election in recent memory will occur on November 7, 2000. George W. Bush, who favors Antonin Scalia and Clarence Thomas, and Al Gore, who favors someone in the mold of Thurgood Marshall and William Brennan, have radically different views of the next Supreme Court appointments. With Roe v. Wade, affirmative action and majority-minority districts at stake, there is no graver choice facing the nation than a progressive Gore Court or a reactionary Bush Court."
Reva Siegel, professor, Yale Law School: "Last term, the Court invalidated provisions of two different civil rights laws, holding that Congress lacked power to enact the antidiscrimination statutes--something the Court has not done since the nineteenth century. After these rulings, it is no longer clear how statutes like the Family and Medical Leave Act or the Pregnancy Discrimination Act can be enforced against state employers, or what kind of hate crimes legislation the Congress can enact. But more is at stake than the particular provisions of the Age Discrimination in Employment Act or the Violence Against Women Act, which the Court struck down last term, or the provisions of the Americans With Disabilities Act, which the Court is considering this term. The question is whether the Court continues to recognize and respect the federal government's power to prohibit discrimination as that power has been exercised by Congress in the decades since passage of the Civil Rights Act of 1964."
Richard Matasar, dean, New York Law School: "Judicial appointment is the stealth issue of every national election. While abortion and crime occupy the attention of the press, the judiciary can also carry on a quiet revolution in its allocation of authority between state and federal government. The Republican judiciary has already significantly shifted the distribution of power between governments; this election can break or solidify that shift."
Maivan Clech Lam, professor, City University of New York Law School at Queens College: "The Supreme Court's rulings on state and federal power are very likely in the next years to determine issues of sovereignty important to indigenous Hawaiians and possibly all tribes in general."
Bob Wing, editor, ColorLines: "The prospect of an entrenched reactionary Supreme Court majority is awful.... However, I wish that I was more confident that Al Gore, who is associated with the Democratic Leadership Council's center-right wing of the Democratic Party, would reverse that trend."
Peter Gabel, president, New College School of Law: "I'm not sharply critical of those who want to vote for Gore to protect the Court, but I do think they overestimate the Court's role as an active progressive power and fail to see its essential commitment to maintaining a center (whether center-right or center-left). It is movements in society that motivate the Court to move. A real left needs to do the opposite of defending the empty center, which is perpetually self-erasing and actually blocks the development of a progressive movement. Instead, we must try to emerge into public visibility--visibility to one another!--by voting for Ralph Nader."
Jill Nelson, writer: "I've been thinking that it's the height of the ever-growing class-based disconnect in this society for people who consider themselves left or progressive or liberal to run the 'I'm going to vote for Nader because there's no difference between Gore and Bush.' Rest assured, I'm not happy with any of 'em, but I'm very clear about the importance of Supreme Court appointments and for that reason will vote for the lesser evil, which is the real, disappointing, difficult nature, it seems, of democracy as we know it. The alternative is for me to delude myself that an abstract notion of principle trumps class privilege, which it doesn't. Sure, no matter who's on the Court, me and mine can have abortions and hire top attorneys and otherwise have the possibility of buying ourselves out of whatever mess we're in, but that's not enough. For me, democracy is fundamentally about community, and to paraphrase Reagan in that movie, what about the rest of us?"
Sydelle Pittas, attorney: "In the course of work on a television series I produced for the Women's Bar Association on 'Your Legal Rights,' I interviewed almost all of Massachusetts' sitting federal judges. From them I learned a few things that showed me how important it is to have Justices who understand the experiences of real women. Justices are human beings, and while they are impressive in how mightily they strive to find the law rather than make it, how they make those findings necessarily comes from their own understanding, based at least in some part on their experience."
Bill Ong Hing, professor of Law and Asian-American Studies, University of California, Davis: "People of color and other traditionally subordinated groups have few institutions upon which they can rely. Their skepticism of the judicial system's desire to respond to their plight has reached a new high point, as the Court molded by Nixon-Ford-Reagan-Bush (Carter made no appointments) has come to dominate the nation's jurisprudence.... Whether and to what extent, if any, the Supreme Court serves as an agent or ally of social change is debatable. But a progressive voice of a Supreme Court majority--open to the views and experiences of those who have been marginalized--would foster a culture (and hope) for change in other mainstream institutions."
The project of racial reconciliation and historical correction is "constitutional" in the deepest, multiple senses of that word.