‘Supreme Injustice’

from MSNBC June 15, 2001 "Millions of Americans were puzzled as well as irate at the U.S. Supreme Court’s role in deciding the presidential election of 2000 with its controversial ruling in Bush v. Gore. The court had been seen as the embodiment of fairness and principle precisely because it was perceived to be above the political fray. How could it now issue a decision that reeked of partisan politics? In “Supreme Injustice,” author and legal expert Alan M. Dershowitz addresses that question head-on, and argues that in this case, for the first time, the court’s majority let its desire for a particular partisan outcome have priority over legal principles. Read an excerpt below."

Excerpted from Supreme Injustice, by Alan Dershowitz.

INTRODUCTION

"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."[he was referring to the the U.S. court system] Justice John Paul Stevens in his dissenting opinion in Bush v. Gore

The five justices who ended Election 2000 by stopping the Florida hand recount have damaged the credibility of the U.S. Supreme Court, and their lawless decision in Bush v. Gore promises to have a more enduring impact on Americans than the outcome of the election itself. The nation has accepted the election of George W. Bush, as it must under the rule of law. It will have an opportunity to reassess this result in 2004. But the unprecedented decision of the five justices to substitute their political judgment for that of the people threatens to undermine the moral authority of the high court for generations to come.

The Supreme Court, which consists of only nine relatively unknown justices with small staffs, has wielded an enormous influence in the history of our nation. It is the most powerful court in the world — the envy of judges in every other country. Presidents accept its rulings, even when disagreeing. The public eventually embraces much of what the justices say in their judgments. Legislatures rarely seek to overrule their decisions. Though only one part of our delicate system of checks and balances, the high court speaks the final word on many of the most divisive and important issues of the day. This enormous power has always been viewed as legitimate because of the unique status of the justices as transcending partisan politics, eschewing personal advantage and pronouncing the enduring constitutional values of our nation. We defer to them because we respect them.

Now in one fell swoop, five partisan judges have caused many Americans to question each of the assumptions undergirding the special status accorded these nine robed human beings. Bush v. Gore showed them to be little difference from ordinary politicians. Their votes reflected not any enduring constitutional values rooted in the precedents of the ages, but rather the partisan quest for immediate political victory. In so voting, they shamed themselves and the Court on which they serve, and they defiled their places in history.

Because the Supreme Court lacks the legitimacy and accountability that come with election and the power that derives from the sword and the purse, its authority rests on public acceptance of its status as a nonpartisan arbiter of the law. This moral authority is essential to its continued effectiveness as an important guarantor of our constitutional liberties. Unless steps are taken to mitigate the damage inflicted on the Court by these five justices, the balance struck by our Constitution between popular democracy and judicial oligarchy will remain askew. Preserving this delicate balance is essential to our liberties and to our system of checks and balances. That is why I have written a book about the Supreme Court decision rather than about the election. Here I offer a critical assessment of the decision itself as well as the motivations of the justices who rendered it. I provide both direct and circumstantial evidence that some of them were motivated by partisan advantage, while others were motivated by expectation of personal gain. I explore the dangerous implications of the decision in Bush v. Gore for all Americans, regardless of party affiliation or ideology, especially since the Supreme Court — prior to this case — was among the last institutions whose integrity remained above approach. Finally, I propose steps that can be taken to avoid any repetition of this supreme injustice.

Unless steps are taken to mitigate the damage inflicted on the Court by these five justices, the balance struck by our Constitution between popular democracy and judicial oligarchy will remain askew.

The majority ruling in Bush v. Gore marked a number of significant firsts. Never before in American history has a presidential election been decided by the Supreme Court. Never before in American history have so many law professors, historians, political scientists, Supreme Court litigators, journalists who cover the high court, and other experts — at all points along the political spectrum — been in agreement that the majority decision of the court was not only “bad constitutional law” but “lawless,” “illegitimate,” “unprincipled,” “partisan,” “fraudulent,” “disingenuous,” and motivated by improper considerations. In addition to the remarkable expert consensus regarding this case, there is also widespread popular outrage at what the high court did. Though the level of this outrage tends to mirror party affiliation, it is safe to say that the degree of confusion over what actually happened is not limited to one party. There are millions of Americans who do not strongly identify with the Democratic Party — indeed, even some who voted for George W. Bush — but who cannot understand how five justices could determine the outcome of a presidential election. Moreover, the furor within the Supreme Court itself — among some justices and law clerks — is unprecedented in the annals of this usually harmonious institution.

In light of these factors, many Americans who believed that the Court was an institution that could be trusted to remain above partisan politics are now experiencing a genuine loss of confidence in the impartiality of the judicial branch of our government. This widespread loss of confidence, reaching to the pinnacle of our judiciary, should be the concern of all Americans, because the Supreme Court has played such a critical role in the history of our nation. Without its moral authority, we would be a less tolerant, less vibrant, and less free democracy. The high court, throughout its long and distinguished history, has helped us — not always perfectly or swiftly — through crises of institutional racism, religious intolerance, McCarthyism, systematic malapportionment, presidents who deemed themselves above the law, and governors who defied the Constitution. The Court stepped in when the other branches of government were unwilling or unable to enforce the constitutional rights of unpopular minorities. The justices were always at their greatest when they could act unanimously and on principles that could be easily justified and widely accepted. When they act in an unprincipled and partisan manner — as they did in Bush v. Gore — they risk losing respect and frittering away the moral capital accumulated by their predecessors over generations. That is what Justice Stephen Breyer was referring to when he wrote in his dissent in Bush v. Gore:

”[I]n this highly politicized political matter, the appearance of a split decision runs the risk of undermining the public’s confidence in the Court itself. That confidence is a public treasure. It has been built slowly over many years… It is a vitally necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself… [We] risk a self-inflicted wound — a wound that may harm not just the Court, but the Nation.”

That is why all Americans must care about this case and must derive appropriate lessons from it. The Supreme Court’s moral capital will certainly be needed again in our future, and so it is a tragedy that it has been dissipated for short-term partisan gain in a case in which the Supreme Court had no proper role.

Nor is it relevant to the point of this book that had the Supreme Court not stopped the hand count, Bush might well have won — according to some accounts, by even more of a margin than the official count gave him. The Supreme Court did not know what the result of the hand count would be when it stopped it. A hijacking occurs when someone unlawfully seeks to divert a vehicle from its course. The fact that the vehicle ultimately ends up at its intended destination does not mitigate the hijacker’s culpability.

This book is about the culpability of those justices who hijacked Election 2000 by distorting the law, violating their own expressed principles, and using their own robes to bring about a partisan result. I accuse them of failing what I call the shoe-on-the-other-foot test: I believe that they would not have stopped a hand recount if George W. Bush had been seeking it. This is an extremely serious charge, because deciding a case on the basis of the identity of the litigants is a fundamental violation of the judicial oath, to “administer justice without respect to persons…” In this book, I marshal the evidence in support of this charge. In a larger sense, this book is also about the Supreme Court and its continuing importance to all Americans. Its purpose is to alert the American people to a serious problem in the hope that constructive criticism can help to avoid a crisis that could endanger our liberties.

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Justice O'Connor "..has recently acknowledged to a mutual friend that her vote in the election case may have hurt her reputation and endangered her place in history. She was right." [Supreme Injustice, by Alan K. Dershowitz, pg 161 ]

"of all the judicial decisions rendered in this case, none was more surprising and controversial than the 5-4 rulng to stop the counting even before hearing argument" [ Dershowitz, pg 46 ]

Chief Justice Rehnquist: "Don't bother so much with the reasoning, it will only trip you up." this was "Cited in Edward Lazarus, Closed Chambers" [ Dershowitz, pg 141 ]

Justice Scalia: "The Supreme Court of the United States does not sit to announce 'unique' dispositions." United States v. Virginia, and "Our Consideration is limited to the present circumstances" - Bush v. Gore , [ Dershowitz, pg 122 ]

"Even if it was true that counting the ballots, missed in the machine count, by nonuniform standards would constitute a prima facie violation of equal protection, that conclusion could not survive if the only remedy for that violation itself created a far more serious equal-protection violation, as it did in this case. What, after all, is the alleged violation of equal protection if all of the ballots missed by the machine are counted by hand and subjected to the Florida statutory test of clear voter intent?" [ Dershowitz, pg 68 ]

What do the legal scholars say about this extraordinary ruling?

"Jeffery Rosen, a legal write and law professor typically respectfull of the supreme court, mounted a scathing attack on the majority within days of the decision...Calling them 'four vain men and one vain woman," he accused the five of voting their 'self-initiated political preferences' rahter than applying the rule of law. Focusing particularly on Justices Kennedy and O'Connor - from whom he obviously expected more - he said the opinion 'unmasks them more nakedly than a TV camera ever could.' In an unusual personal attack he called them 'preening' as well as 'addled and uncertain.' He characterized the opinion as politically driven with no law to support it because it was 'tailor made for this occasion.' The majority justices, Rosen said, 'played us all for dupes' and sent themselves to hell in the process.' His article was entitled 'The Supreme Court Commits Suicide.' " [Dershowitz, pg 174]

Vincent Bugliosi has written a book about this too, here is part of a review:

Vincent Bugliosi's "The Betrayal of America" Reviewed by Carla Binion

In real equal protection cases, it's the aggrieved party who brings the action, writes Bugliosi. However, Florida voters did not bring the action. Instead, Bush "leaped in and tried to profit from a hypothetical wrong inflicted on someone else." The core of Bush's complaint was that he himself might be harmed.

Bugliosi writes that common sense would show that Bush would not have been harmed if the vote count had continued. The reason is, he says, is because "just as with flipping a coin you end up in rather short order with as many heads as tails, there would be a 'wash' here for both sides; i.e., there is no reason to believe that there wouldn't be just as many Bush as Gore votes that would be counted in one county yet disqualified in the next."

The only "harm" to Bush that the court wanted to prevent by halting the vote count, was that "he would be harmed by the truth." According to Bugliosi, the court was really saying to voters: "We're so concerned that some of you undervoters may lose your vote under the different Florida county standards that we're going to solve the problem by making sure that none of you undervoters have your votes counted."

The court majority, after throwing out some 60,000 votes, then had the audacity to write that its intention was to preserve "the fundamental right" to vote, says Bugliosi. This is Orwellian Newspeak equivalent to "war is peace" or "up is down."

The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President By Vincent Bugliosi On Line Journal review

"Vincent Bugliosi, the generally moderate former prosecutor known for securing teh conviction of the Charles Manson gang, used even stronger language, accusing the Supreme Court's 'brazen, shamless majority' of being a knowing surrogate for the Republican Party instead of being an impartial arbiter of the law.' He characterized these justices as 'criminals in the truest sense of the word' and described their opinion as 'fraudulent.' My Harvard Law School colleague Randall Kennedy called the Supreme Court's intervention 'a scandal' and it's decision outrageous. He accused the Court of acting 'in bad faith abnd with partisan prejudice' and concluded that the high court is 'unworthy of deference.' Scott Turow said the decision was 'the most overtly politicised action by a court that I have seen in 22 years of practicing law' and labeled it 'an act of judicial lawlessness.' Professor Bruce Ackerman of Yale Law School accuse the majority of 'vulgar partisanship.' " [Dershwoitz pg 175]

"Professor Cass Sunstein, who had praised the Supreme Court's initial unanimous decision, called it's final one 'illegitimate, undemocratic, and unprincipled.' Even Anthony Lewis, who had written one of the most hagiographic accounts of the justices in modern history, * Gideon's Trumpet *, declared the decision to be a 'dismal failure' and quoted favorably from a thoughtful British columnist who said the ruling 'put an indelible stain on the court's half illusory reputation as honest guardians to the Constitution.' He also quoted a law professor as asking rhetorically, 'How can I convince my students now that the integrity of legal reasoning matters?" [Dershowitz pg 175]

Excerpted from Supreme Injustice, how the High Court Hijacked Election 2000 by Alan Dershowitz.

Since the book came out, "W" BUsh has confirmed our suspicions by appointing certain people to various jobs:

From the Chicago Tribune

"Janet Rehnquist, daughter of Supreme Court Chief Justice William Rehnquist, has been named inspector general for the Department of Health and Human Services. And Supreme Court Justice Antonin Scalia 's son, Eugene, has been chosen as solicitor general of the Department of Labor." The Chicago Tribune

More on the motives of the justices in this case:

"...they were appointed precisely because their biographies showed them to be right-wing ideologues and Republican partisans. Unlike many past justices throughout our history, none of these justices would have warranted any mention in our history books but for the fortuity of having been appointed to our highest court. These were not men and women who had reached the pinnacle of their profession before they ascended to the bench, as had Oliver Wendell Holmes, Loius Brandeis, Benjamin Cardozo, Lewis Powell, Thurgood Marshall, Arthur Goldberg, John Harlan, and Harlan Fiske Stone, to mention a few. Nor had they achieved distinction in politics, as had William Howard Taft, Earl Warren, Hugo Black, or Charles Evans Hughes. Rhenquist and Thomas were middle-level government lawyers; O'Connor was a middle-level state court judge. Kennedy was a competent but relatively unknown federal judge who had previously been an ordinary lawyer and politically connected lobbyist. Even Antonin scalia, who was a highly regarded law professor before his appointment to the Court of Appeals for the District of Columbia Circuit, was known more for his ideological exrtremes than for his scolarship. Few would have ranked him among the most distinguished theoritecians of constitutional law, but everyone would have ranked him as the most ideological of right-wing theorists...It was his extremeism, not his academic distinction, that brought him to the attention of the Reagan administration and ultimately got him his job on the high court. [Dershowitz. pg 199]

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