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.