It’s not as if the Supreme Court comes before us with clean hands. In the course of its 200-plus years, it has at various times ruled that no runaway slave could ever be free so long as his master wanted him back; that black children had no right to attend school with white children; that state prohibitions on 6-year-olds working in sweatshops were unconstitutional. The list of the court‘s low points is a litany of our worst biases invested with the power of law.
But until this week, no one could say that the court ignored and distorted the law solely to benefit one political party and its candidate. At its worst, the court codified our fears, or routinely did the bidding of business as a class. But at no time did it simply do the bidding of a candidate it preferred, and it most certainly never did the bidding of a candidate to make him president.
But that was before Saturday’s decision to stop counting the votes in Florida lest it do George W. Bush ”irreparable harm.“ That was before Tuesday‘s decision — breathtaking for both its intellectual dishonesty and its cowardice — bestowing the presidency on W.
As of now, the relationship of the United States Supreme Court (more precisely, of its five right-wingers) to W. is roughly that which existed between the Yugoslav Supreme Court and Slobodan Milosevic. The justices go through the motions of deciding matters of law, but their only real goal is to keep — or, in this case, put — their guy in power.
Consider, for instance, the shifting grounds on which the court first stayed and then invalidated the recount that the Florida Supreme Court had ordered last Friday. In the order issuing Saturday’s stay, Antonin Scalia offered three reasons for stopping the count. First, he questioned the legality of the count as such, on the theory that the Florida Supremes were illegally altering the Legislature‘s statutory handiwork. Second, he said, the varying standards for recounting were improper and perhaps unconstitutional, and, third, the act of recounting could ”produce a degradation of the ballots . . . [that could] prevent an accurate recount from being conducted on a proper basis later.“
Look at the court’s Tuesday-night decision, however, and you‘ll have a hard time recognizing Saturday’s rationales. The argument that the court overstepped its bounds and was making new law is not part of the majority opinion; it is relegated to a concurring opinion signed only by the court‘s three hard-right members, Scalia, Clarence Thomas and Chief Justice William Rehnquist. Reason number two, the disparity in the vote counts, has been elevated to the main reason for overturning Tallahassee, since it amounts to a violation of the 14th Amendment’s equal-protection clause. From excoriating the Florida Supremes from usurping too much power from the Legislature, the indictment against them abruptly becomes their failure to do even more to clarify the Legislature‘s muddled vote standards. ”The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary,“ Rehnquist writes.
But, concludes Rehnquist and his band, it can’t be done in time. December 12, he decrees, is the drop-dead date by which the counting must be completed, and one, obviously, that can‘t be met. But here is where the cowardice of the court becomes clear. In his decision, Rehnquist contends that it is not he who is insistent upon the December 12 date. ”The Supreme Court of Florida has said that the legislature intended the State’s electors to ‘participate fully in the federal electoral process’ as provided in“ the federal election code. ”That statute, in turn, requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12.“
In their dissents, the four justices in the minority argue with Rehnquist about whether December 12 is really the cut-off date or not; they do not pause for a millisecond to consider his claim that he is merely restating the judgment of the Florida Supremes (to which he has in no other way given any heed). Still, by the chief‘s strained citation of the Florida court, and by the equally bizarre tactic of having the main opinion unsigned, Rehnquist and his fellow partisans try to duck responsibility for their grotesque ruling.
Just how grotesque it is becomes clearer if we recall Scalia’s third justification for Saturday‘s stay: that it would preserve the ballots in better shape for a proper count. In Tuesday’s ruling, however, Scalia was one of the justices who rejected such a count because there wasn‘t time for it.
From the intellectual leader of American judicial conservatism, one expects duplicity of a higher order than this.
There are higher kinds of duplicity in Tuesday’s majority decision — arguments that contradict everything the justices normally stand for but which they must make if they are to find a pretext to stop the count. The Rehnquist-Scalia gang, for instance, has penned a succession of controversial 5-to-4 decisions over the past half-decade asserting the rights of states over the federal government. Confronted with a state court routinely following state recount law, however, they suddenly find merit in federal pre-emption, since state control of its own election could create the possibility of a W. defeat. ”Were the other members of this Court as mindful as they generally are of our system of dual [that is, federal-and-state] sovereignty,“ Ginsburg wrote in dissent, ”they would affirm the judgment of the Florida Supreme Court.“
The other about-face that Rehnquist and Co. have been compelled to make for W.‘s sake is their sudden embrace of the equal-protection clause. Until Tuesday, they maintained their resolve not to invoke that clause as a reason, say, why gays should have a right to serve in the Boy Scouts or the Army. But the threat that variances in vote counting posed to W.’s lead was something else again; it was an affront, as Rehnquist movingly noted, to ”the equal weight accorded to each vote and the equal dignity owed to each voter.“
Rehnquist is something of an authority on the equal dignity owed to voters, since few living Americans have done more to assault it. During the 1986 Senate hearings on his nomination as chief justice, a number of witnesses testified that Rehnquist had harassed black and Latino voters at Arizona polling places from 1958 through 1962, demanding to know if they were ”qualified to vote.“ Rehnquist acknowledged that he headed a Republican program that briefed the ”challengers,“ but disputed five eyewitnesses who insisted they‘d seen him doing the challenging himself.
It’s gratifying to see that Rehnquist has mellowed. Forty years ago, he actually tried to keep minorities from voting. Now, he merely keeps their votes from being counted.
What comes through as you read the opinions of the four dissenting justices is how stunned, how shaken, they are by the duplicity of their colleagues. Each writes in a tone of furious, wounded disbelief, and none more so than 80-year-old John Paul Stevens, appointed to the court in 1975 by Gerald Ford: ”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,“ Stevens concludes. ”It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.“
Taken together, the four dissenting opinions from these politically moderate justices make unmistakably clear their belief that the five justices in the majority twisted, flouted and mocked the law to make George W. Bush president. How, they are demanding to know, could this happen to our court? How, we should demand, could this happen to our country?