LeftOut
by Daryl Moore
Supreme Doubt

What happens when the Supreme Court elects a president? The nation’s confidence in the judiciary is shaken!

In a fractured 5-4 decision on December 9, a majority of the U.S. Supreme Court stayed the Florida vote count ordered the day before by the Florida Supreme Court. Just three days later, on December 12, the same majority reversed the Florida Supreme Court’s decision and remanded the case to the Florida court. By doing so, the majority ended Vice-President Al Gore’s quest for the presidency.

Lest individuals think that a majority of the U.S. Supreme Court swooped down at the last minute with no motives of its own other than to save the American public from political warfare and a Constitutional crisis, they should consider the following:

• Justice Antonin Scalia’s sons worked as lawyers at two of the law firms hired by George W. Bush’s campaign to work on the Bush v. Gore appeal. (Scalia did not recuse himself and ruled for Bush.)

• All five of the justices who voted to stop the recount were appointed by Republican presidents. One–Clarence Thomas–was appointed by George W. Bush’s father. (Thomas did not recuse himself and ruled for Bush.)

• Scalia recently told Washingtonian Magazine that he would likely leave the United States Supreme Court if Gore won because a Gore presidency would kill any chance of Scalia becoming chief justice if the current chief, William Rehnquist, stepped down while a Democrat was president.

• While the court was considering the Bush v. Gore appeal, Justice Thomas’s wife was accepting applications by individuals interested in landing positions in a Bush White House.

While these tidbits may not pass the smell test, they would not be worth mentioning if the Supreme Court had not forsaken its own steadfast tradition of issuing unanimous or near-unanimous opinions in highly politicized cases to instill the public’s confidence in the court’s impartiality. For example:

• In 1954, in Brown v. Board of Education, a unanimous Supreme Court ruled that the "separate-but-equal" doctrine was unconstitutional and stopped the segregation of children in public schools solely on the basis of race.

• Twenty years later, in Roe v. Wade, a 7-2 court ruled that criminal abortion laws, which outlawed all abortions except to save the life of the mother, were unconstitutional.

• In the midst of the Watergate crisis in 1974, in United States v. Richard M. Nixon, a unanimous court ruled that President Nixon was required to turn over his tape-recorded conversation to the special prosecutor. (Rehnquist recused himself because he was appointed by Nixon.)

• In 1997, in William Jefferson Clinton v. Paula Corbin Jones, a unanimous court ruled that President Clinton could be sued and forced to stand trial while in office. (Neither Ruth Bader Ginsberg nor Steven Breyer–both Clinton appointees–recused him/herself, but both ruled against Clinton.)

The court’s deftness for avoiding charges of partiality and political partisanship evaporated, however, with the issuance of its opinion in Bush v. Gore. Three of the justices, Rehnquist, Scalia, and Thomas, found numerous reasons to stop the recount. Sandra Day O’Connor and Anthony Kennedy disagreed with these three but still voted to stop the recount because the December 12 deadline–which was imposed by the court in the majority’s opinion–would pass before a constitutional count could be completed.

Four of the justices–two of whom were appointed by Republican presidents–pointed out that the majority’s conclusion that "a constitutionally adequate recount is impractical is a prophecy the court’s own judgment will not allow to be tested." In other words, the dissenters criticized the majority for stopping the vote count three days before the December 12 deadline, and then declaring Bush the winner because a count could not be completed by the majority-imposed deadline.

Ironically, when the majority stayed the vote count on December 9, Justice Scalia noted that the count had to stop because to permit it to go forward would "cast a cloud upon the legitimacy of Bush’s election." By stopping the count in a fractured opinion, however, the court has cast a much more serious cloud of illegitimacy upon the court itself.

Several recent polls reflect that a majority of Americans have stated that their confidence in the impartiality of the U.S. Supreme Court was seriously shaken by the majority’s decision to inject itself into a presidential election by stopping the Florida vote count. Perhaps Justice John Paul Stevens’ prediction in his dissent will be right, and "time will one day heal the wound" to the public’s confidence in the court that was "inflicted by the court’s decision." We can only hope.