The U.S. Supreme Court's intervention into the presidential election was and is a scandal. Five right-wing justices used the flimsiest of pretexts to block the Florida vote recount. Chief Justice William Rehnquist and Company are typically unmoved by alleged Equal Protection Clause violations (except when the plaintiffs are whites charging so-called reverse discrimination). In George W. Bush et al. Petitioners v. Albert Gore, Jr., et al., however, they created a new right to uniform treatment in ballot counting.
Typically, these conservative justices insist that every benefit of the doubt be accorded to state judges interpreting state law. Indeed, they are usually so deferential to state judges that they have been willing even to countenance the executions of prisoners rather than encroach even a bit on the perceived prerogatives of state courts. In Bush v. Gore, however, Rehnquist, Justice Antonin Scalia, and Justice Clarence Thomas asserted that the Florida Supreme Court's interpretation of state law lacked a reasonable basis. Joined by Justice Anthony Kennedy and Justice Sandra Day O'Connor, they further usurped the state court's authority by preventing it from even attempting to establish the standards for uniform vote-counting that were said to be essential. True, Justice Stephen Breyer and Justice David Souter found fault of a constitutional dimension with differences in how various jurisdictions were determining voter intent in the manual recount. But while they insisted that the Florida court should be accorded the opportunity to fix this perceived deficiency--as is normally done--the Court majority took the unusual step of foreclosing this possibility. That act of judicial fiat crystallizes, more than anything else, the outrageousness of Bush v. Gore.
The Gang of Five showed themselves to be a cadre of downfield blockers committed to clearing away any last-minute impediments to the ascendancy of George W. Bush. Their opinion is a hypocritical mishmash of ideas that even some of their ideological allies--for instance, Einer Elhauge, a Harvard Law School professor who represented the Republican-dominated Florida legislature--have criticized as being poorly written and thinly reasoned.
Every Supreme Court decision is animated by capital-P Politics of a certain sort: a given conception of constitutional interpretation, or federalism, or the proper relationship of the competing branches of government. Bush v. Gore, however, is driven by small-p politics--a decisive preference by the judges for one party over another. In a talk before high school students the day after the decision, Justice Clarence Thomas declared that people ought not to apply the rules of the political world to the Supreme Court. But in light of recent events, that assertion rings ridiculously hollow.
The Gang of Five used their power to accomplish their ends. Now those who oppose them should use their power to respond.
Three tasks are essential. First, we should state forthrightly what occurred in Bush v. Gore. Some critics of the Court's intervention are sidestepping the sobering reality of the situation: that the Court majority acted in bad faith and with partisan prejudice. If the political shoe had been on the other foot--if Al Gore had been the petitioner instead of George W. Bush--the Court would have acted differently.
Second, we should inject realism into public discussions about the Court. It is a journalistic convention to state that the Republican Party now controls the White House, the Senate, and the House of Representatives, but to exclude talk of right-wing Republican control of the Supreme Court (which journalists and other arbiters of public opinion deferentially place on a different plane from the other branches of government). Such rhetorical obfuscations should be erased.
Some readers will retort that it is important to retain public confidence in the Court because, as Anthony Lewis writes, "[i]n this vast, diverse country, we depend on the Supreme Court as the final voice." But trusting the Court is good only if it is trustworthy. Because of progressive Court decisions from the 1940s through the 1960s, many liberals have come to believe that there is something peculiarly virtuous about the third branch of government, the supposedly least dangerous branch. A reconsideration of that particular dogma is long overdue. Bush v. Gore offers as good an invitation as any to rethink whether we ought to depend upon and defer to the Supreme Court as the final voice.
Third, we should begin preparing the ground to prevent another rightward lurch of the federal judiciary through the president's appointment power. The sad truth is that the Democratic Party bears a substantial part of the responsibility for permitting the Supreme Court to drift as far to the right as it has. It was, after all, a Democrat-controlled Senate that confirmed the ascension of William Rehnquist to the chief justiceship after he had given ample notice as an associate justice that he was a committed foe to the just aspirations of racial minorities, women, organized labor, and civil libertarians. Judicial nominees should have to pass certain litmus tests before they receive a senator's vote for confirmation. Their records and testimony should give us confidence that they will respect people's hard-won rights. When that confidence is lacking, nominees should be rejected. Given the powerful presence of the federal bench in the nation's life, a more rigorous process of oversight by progressives is clearly warranted.
Democrats should have blocked right-wing confirmations and demanded that Republican presidents nominate jurists who are more politically palatable. Now, Democratic senators should unapologetically refuse to confirm for judgeships individuals ideologically in line with Justice Antonin Scalia, whom President-elect Bush has repeatedly praised. We all should recognize that in a Bush administration, there will be no Larry Tribes brought to the bench. But we should also insist that there be no confirmations 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 directly. And they should demand that the Court repair its own damaged reputation. Only when that occurs should the public repose its trust in the Court, which is now unworthy of deference. ¤