Supreme Injustice

Supreme Injustice

Click here to review some of the more perceptive comments on the Scalia Five’s judicial coup d’etat.


Lest we forget–just over six months ago, the Rehnquist Court stole an election in broad daylight. In fear of the truth, the Scalia Five intervened to block all votes from being counted, an action “unprecedented” (both historically and judicially) in US history. Though the June 12 “anniversary” went unnoticed by the media, we must never forget.

Was it the worst Supreme Court decision in US history, as American University Constitutional scholar Jamin Raskin has suggested? Considering that Raskin is a staunch civil rights advocate, the very thought that he would rank Bush v. Gore lower than both the Dred Scott and Plessy rulings is instructive. Nor does Raskin stand alone in his opinion of this judicial coup.

Justice John Paul Stevens

: “One thing, however, is certain. 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. I respectfully dissent.”

Justice Ruth Bader Ginsburg

: “In sum, 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. I dissent.” And related is the unsigned per curiam decision of the Scalia 5, a transparent attempt to try to avoid history’s scarlet letter.

Hendrik Hertzberg

, former presidential speechwriter: “The election of 2000 was not stolen. It was expropriated.”

David Kairys

, Temple University: “We had a constitutional crisis, and it was Bush v. Gore. History will not be kind.”

Suzanna Sherry

, Vanderbilt University: “There is really very little way to reconcile this opinion other than that they wanted Bush to win.”

Jeffrey Rosen

, legal scholar: “They have…made it impossible for citizens of the United States to sustain any kind of faith in the rule of law as something larger than the self-interested political preferences of William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O’Connor.”

Randall Kennedy

, Harvard University: “But we should also insist that there be no confirmation for Scalia-like champions of the right-wing agenda. The Supreme Court has hurt its own reputation by wrongly intervening to ensure the victory of George W. Bush. Those who abhor what the Court did should say so and say so loudly and clearly.”

Jesse Jackson and John Sweeney

: “But if it comes down for justices to the 14th amendment and the promise of equal protection, one can only hope for the sake of the country that they consider how not counting all the votes mirrors too closely the habits of heart and mind that brought us slavery and segregation–the original sins of our nation that the equal protection clause sought to repair.”

And, of course,

Vincent Bugliosi

, prosecutor of Charles Manson and author of several bestselling true-crime books, in The Betrayal of America: “. . . the Court committed the unpardonable sin of being a knowing surrogate for the Republican Party instead of being an impartial arbiter of the law…. [The Court searched] mightily for a way, any way at all, to aid their choice for president, Bush, in the suppression of the truth, finally settling, in their judicial coup d’État, on the untenable argument that there was a violation of the Fourteenth Amendment’s equal protection clause…”

Recent polls indicate the public’s growing dissatisfaction with the results of the Scalia Five’s decision. A survey conducted by the Pew Research Center and Princeton Survey Research Associates (June 13-17) showed George W. Bush’s job approval rating at just 50 percent, down six points from March; the New York Times survey with CBS News (June 14-18) put the rating at 53 percent, down seven points from March. And Democracy Corps’s Greenberg Quinlan Rosner poll (June 11-13) found that 48 percent of likely voters think the nation is currently on the “wrong track.” Perhaps most tellingly, 25 percent of voters in the Democracy Corps poll said that the phrase “not really elected President” describes Bush “very well,” with another 15 percent saying that it describes him “well”–in other words, six months after the Scalia Five coup, 40 percent of likely voters still believe Bush was not really elected President.

What then, is to be done?

The least we can do is know our own history, and to understand that what the Injustices did was an insult to the dreams and ideals of Lexington and Concord, Valley Forge and Jefferson and Paine, Gettsyburg and Lincoln and Douglass, Selma and King, Seneca Falls and Anthony, Delano and Chavez, Flint and Debs and Lewis. We can bear witness to injustice, in the nonviolent protest tradition of Thoreau, Gandhi, King, Havel, Robinson, Chavez.

The Scalia Five’s judicial coup came down on the second Tuesday last December. So, on the second Tuesday of July, July 10, 2001, the Tuesday after the Pro-Democracy Convention in Philadelphia, the Tuesday between Independence Day and Bastille Day, the Institute for Policy Studies and friends are calling for a peaceful, nonviolent vigil at the Supreme Court building, at noon.

On July 10–and each Tuesday at noon from then on–let’s gather at the scene of the crime, and bear witness to the truth. The Scalia Five won’t be there; but we should be.

Bring a candle or a bell, like the Czechs a decade ago. Bring a copy of the Voters’ Bill of Rights, or the US Constitution. Send an e-mail to all your friends, with your favorite quote from this list. Bring Pablo Neruda’s and Marge Piercy’s poems. Bring the next generation, so they will never forget. Bring your commitment to restore, rebuild, and expand American democracy. The Supreme Court cheated. Democracy lost. For now.

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