Some conservatives say the Florida Supreme Court violated the law in its decisions on the 2000 presidential election and tried to “steal the election” for Al Gore. They claim that the U.S. Supreme Court stopped the Florida court’s wrongdoing.
Those conservatives apparently think that if they repeat a lie often enough, people will start to believe it. The result will be a cover-up of an outrageous criminal act committed by five conservative leaders on the U.S. Supreme Court – William Rehnquist, Antonin Scalia, Sandra Day O’Connor, Clarence Thomas, and Anthony Kennedy.
Anyone who examines the subject with a shred of objectivity – rather than a political ax to grind – can see that the U.S. Supreme Court trampled the law in the case of Bush v. Gore. It did so by overruling the Florida Supreme Court’s lawful decisions.
Its conduct served only one purpose: to stop the counting of legal votes and install George W. Bush in the presidency.
At issue in the Florida case was the counting of ballots containing the “undervotes.” Those were ballots on which the voting machines were unable to detect the voters’ intent. The machines had simply not counted any votes for president on the ballots.
Over half the ballots in the Florida presidential election were cast on the Votomatic punch-card machines, which may fail to count approximately 3.9% of the votes. The rest of the ballots were cast mainly on the more modern optical-scan system, which can fail to read some 1.4% of them. The failure to count these ballots can be due to voter error or, as frequently occurs, machine error.
Consequently, there were about 60,000 undervotes the machines had not counted during the tabulation of the Florida presidential election returns. The undervotes from the Votomatic machines, and some of the undervotes from the optical-scan system, also were not counted during the machine recounts. They needed to be counted by hand.
According to officials from the industry that makes the machines, visually inspecting the uncounted ballots often reveals a voter’s intent to select a particular candidate. Examples include ballots on which a voter wrote the candidate’s name or incompletely punched the ballot (the so-called hanging, dimpled, or pregnant chads).
In extremely close elections, the undervotes have to be counted manually to determine who won. That’s the normal procedure followed.
Under Florida law, when a state court finds that a challenge to the certification of an election is justified, the court has power to “provide any relief appropriate under the circumstances.” The law also is clear that ascertaining “the will of the people,” as expressed by the ballots cast, is the guiding principle in determining the relief to be granted.
Accordingly, the Florida Supreme Court ordered on Friday, December 8, 2000 that in each county of the state, any necessary hand counts be done on the undervotes that had not been manually counted. In Miami-Dade County alone, the ruling applied to some 9,000 undervotes needing to be examined for the first time.
Bush was leading Gore by 154 votes, and the court found there was no doubt that enough legal votes were contained in the undervotes to put the outcome of the election in question. The court further explained: “We must do everything required by law to ensure that legal votes that have not been counted are included in the final election results.”
Additionally, having been warned on December 4 by the U.S. Supreme Court to not make any changes in the law, the Florida Supreme Court directed that a vote be considered valid if there is “clear indication of the intent of the voter.” This standard comes straight from the Florida Election Code. The same standard was applied in prior election cases by Florida courts, has been used in numerous other states for many years, and had never previously been challenged.
In a clarifying opinion provided to the U.S. Supreme Court on December 11, the Florida Supreme Court explained that its decisions had formulated “no new rules of state law” and had simply construed Florida laws “enacted long before the present election took place.” The court said it had interpreted “legislative intent as informed by the traditional sources and rules of construction we have long accepted as relevant in determining such intent.”
An examination of the Florida Supreme Court’s rulings supports those assertions entirely. The court was faced with several vague and contradictory election laws, due to amendments made to the Florida Election Code over the years. In construing the laws, the court reasonably applied rules of statutory construction used by all courts in such situations. Not even a majority of the U.S. Supreme Court found a problem with the Florida court’s interpretation of the laws.
In fact, the Florida Supreme Court’s actions were consistent with prior legal interpretations issued in Florida cases for some 75 years – interpretations never overridden by the Florida legislature. The court’s orders also accorded with the manner in which disputed elections are commonly decided in other states. For example, when George W. Bush was governor of Texas, he signed a law providing for manual recounts. The law says a manual recount “shall be considered in preference to an electronic recount.”
Moreover, in two of its decisions on other matters concerning the election, the Florida Supreme Court had ruled against Gore’s side. In one, the court declined Gore’s request for an order requiring Miami-Dade County to resume a hand-count of ballots during the “protest” phase of the recount proceedings (i.e., during the earlier phase in which county officials, rather than the courts, had primary responsibility over the proceedings). In the other, the court refused a petition for a revote brought by Palm Beach County residents who claimed that the county’s confusing “butterfly ballot” – which surely cost Gore thousands of votes – didn’t comply with state law. A pro-Gore decision on either of those matters would have likely resulted in his election.
Former prosecutor Vincent Bugliosi, in his book The Betrayal of America, sums up that “there is no evidence that the Florida Supreme Court based its decisions on anything but solid and enduring legal principles.” He also says the “Florida Supreme Court did nothing at all from which any rational inference of a political motivation could be inferred.”
In regard to the Florida Supreme Court’s actions, the crux of the matter is that an election is not stolen by requiring all the votes to be counted in a way that votes have been counted since the country’s inception.
The Florida Supreme Court issued its decision at about 4:00 in the afternoon of Friday, December 8. The statewide counting of the undervotes began shortly thereafter and was proceeding smoothly and rapidly, with votes being recorded for both Gore and Bush. The process was expected to be completed sometime on Sunday afternoon, December 10.
But at 2:40 PM on Saturday, December 9, five conservative members of the U.S. Supreme Court ordered a halt to the counting at the request of Bush’s legal team. Antonin Scalia, in a concurring opinion, wrote that the counting threatened irreparable harm to Bush “by casting a cloud upon what he claims to be the legitimacy of his election.” Subsequent to the stay, no votes were ever again officially counted in the Florida presidential election.
On Tuesday, December 12, the same five justices held that the decision of the Florida Supreme Court violated the Equal Protection Clause of the U.S. Constitution’s Fourteenth Amendment. In general, the Equal Protection Clause requires that persons in similar circumstances be treated equally by the laws.
The majority said the standard announced by the Florida Supreme Court for counting the undervotes – namely, a vote should be counted if there is “clear indication of the intent of the voter” – violated equal protection. The court claimed that because different Florida counties might apply different standards of what constitutes clear intent of the voter, identical ballots might not be counted the same way.
According to the majority, such an outcome was constitutionally impermissible. They said the Florida Supreme Court should have articulated a more uniform standard for counting the undervotes.
Additionally, the five conservatives ruled that December 12 was the legal deadline for Florida’s presidential votes to be counted. Because this was the same date as their decision, they concluded there was no time to send the case back to the Florida court for a more uniform standard to be set and the counting to resume.
The upshot of their actions was that Bush was declared the election’s winner even though thousands of valid votes had not been counted.
There are a number of reasons why the U.S. Supreme Court’s decision in Bush v. Gore is entirely fraudulent, illegal, and corrupt.
(1) Bush lacked standing to sue
Bush had no standing to make a claim that the Florida Supreme Court’s decision violated the Equal Protection Clause. Basically, to have standing to bring an equal protection case in federal court, a party must have suffered injury by a government action or be clearly threatened with such injury. And the threat must be more than theoretical.
As the same five conservative justices specified in a 1995 case, a plaintiff must have suffered “individualized harm” – that is, be an actual victim of an injury – to go forward with an equal protection lawsuit in federal court. Antonin Scalia, in particular, has stringently applied this requirement in equal protection cases.
The issue in Bush v. Gore, as the majority explicitly stated, was whether Florida had treated in a disparate and arbitrary manner “the members of its electorate.” (Emphasis added.) But Bush voted in Texas and was not a member of the Florida electorate. Thus, he was not one of the voters who were allegedly mistreated.
Moreover, there was no showing that the counting would harm Bush the candidate. It was just as likely that any inconsistencies between counties would have favored him instead of Gore, or would have been a wash between both candidates.
Any possible harm to Bush, therefore, was purely theoretical and uncertain. Without suffering harm himself or facing a clear threat of it, he had no standing to sue and his case should have been dismissed on this basis.
(2) The December 9 stay was absurd
One of the most stunning and criticized actions of the five conservative justices was their December 9 stay stopping the counting of the undervotes. This step was taken before the court had even received briefs and heard oral arguments on whether the counting was improper.
The Supreme Court rarely issues a stay before deciding a case. It does so only when there is a substantial showing that a party could suffer “irreparable harm” and is likely to prevail in the lawsuit. Incredibly, Scalia wrote that counting the undervotes would “threaten irreparable harm to petitioner [Bush] . . . by casting a cloud upon what he claims to be the legitimacy of his election.”
According to Scalia, then, Bush had a legal claim that he was legitimately elected without all the votes being counted. And Bush’s claim deserved legal protection from the irreparable harm further counting could cause. The irreparable harm, obviously, was that a complete count might reveal Gore had won.
Always in the past, that was known as democracy rather irreparable harm. Scalia’s position has to be among the most asinine and disingenuous ever written in a judicial opinion. And his four co-conspirators went along with him.
It could not be clearer that counting all the votes does not harm an election’s legitimacy but only adds to it. As Justice John Paul Stevens expressed in dissenting to the stay, the failure to count votes is what casts a permanent cloud over and causes irreparable damage to the legitimacy of a close election. The question forever lingers as to whether a complete count would have shown that someone else had won.
Even if the counting had included some votes that shouldn’t have been counted, this would not constitute irreparable harm. The improperly counted votes could simply be removed from the totals – in the light of day and for reasons everyone could see.
In fact, counting the undervotes could have revealed important information that should have been considered. For example, many of them may have showed an indisputably clear intent of the voters to select a particular candidate – under any standard of counting votes. Those unchallengeable votes should certainly have been included in the final tally. Tony Mauro wrote in USA Today about the illogic of refusing to inspect the undervotes: “Since when is not knowing better than knowing?”
Further, the refusal to examine votes is the most flagrant violation imaginable of the core democratic and constitutional principle that every vote be counted. This is so basic and evident that it’s impossible to think the five justices were unaware of the legal violations they were committing and the voting rights they were extinguishing.
And by stopping the count until the alleged “deadline” for counting votes had passed, the majority did irreparable harm to Gore, because a complete count may well have shown he had won. They had no concern about this genuine irreparable harm.
Vincent Bugliosi says of Scalia’s explanation for the stay: “Only a criminal on the run, rushed for time and acting in desperation, could possibly write the embarrassing words Scalia did.”
Indeed, it’s hard to imagine an assertion more nonsensical, embarrassing, and contrary to law than that counting votes casts a cloud over the legitimacy of an election. Columnist Mary McGrory wrote that Scalia “might as well have been wearing a Bush button on his robes.”
(3) No intent to discriminate was present
The U.S. Supreme court has consistently held for at least five decades that equal protection is violated only by purposeful and intentional discrimination. Proof of a discriminatory effect is insufficient.
For example, the court held in a 1987 death-penalty case that no equal protection violation was shown by statistics revealing that African-American defendants who kill whites are far more likely to receive the death penalty than whites who kill African Americans. Despite assuming the statistics were accurate, the court said equal protection is not violated unless a defendant proves the decision-maker in his particular case acted with discriminatory intent.
That the same standard applied in voting contexts was seen in a 1980 case involving a class-action lawsuit brought by African Americans. The plaintiffs alleged they were denied equal protection by a city’s practice of electing commissioners at large rather than by districts. The court ruled against them because there was no proof the city intended to discriminate against African Americans.
Notwithstanding the well-established requirement that intent to discriminate be proved, the majority in Bush v. Gore made no finding of a discriminatory intent or even a discriminatory effect. Examining those issues would have sunk Bush’s equal protection claim.
The Florida election laws, including the portion the majority found in violation of equal protection, had been in place for decades and produced victories for Democrats and Republicans. Among them was Bush’s younger brother Jeb as the state’s governor. Obviously, the laws were not set up to discriminate against Bush in the 2000 presidential election.
Moreover, the method of counting votes in each Florida county applied equally to all Democrats and Republicans in the county. And there was no evidence that the way Florida counted votes had a discriminatory effect on any candidate in the past, or would have such an impact on Bush.
The majority simply ignored the requirement that intent to discriminate be present. University of Virginia law professor Dick Howard says their decision is “a remarkable use of the equal protection clause. It is not consistent with anything they have done in the past 25 years. No one even claimed there was intentional discrimination here.”
(4) Florida’s method of counting votes had long and widespread acceptance
Throughout the nation’s history, non-uniform standards of vote counting have existed in all the states. Until Bush v. Gore, the U.S. Supreme Court never uttered a peep that the lack of uniformity might violate equal protection.
In view of this history, dissenting Justice Ruth Bader Ginsburg complained to Newsweek that the majority’s decision applied the Equal Protection Clause “in a way that would de-legitimize virtually every election in American history.”
Likewise, Harvard law professor Alan Dershowitz, in his book Supreme Injustice, says the decision “would invalidate virtually every close election in our past and our future, since there is always considerable disparity among voting machines and standards employed to count and recount votes.”
Vincent Bugliosi discusses the same matter: “Since different standards for counting votes exist throughout the fifty states (e.g., Texas counts dimpled chads, California does not), forty-four out of the fifty states do not have uniform voting methods, and voting equipment and mechanisms in all states necessarily vary in design, upkeep and performance, to apply the equal protection ruling of Bush v. Gore would necessarily invalidate virtually all elections throughout the country.”
Because the equal protection claim made by Bush’s lawyers was so at odds with prior cases and practices, many conservative Washington lawyers thought the argument was terrible. They were dismayed to learn that it was going to be made.
The Washington Post reports that even several of Bush’s lawyers viewed the argument as “lame” and “extremely weak.” Newsweek relates that Bush’s first choice to be his lead lawyer in the case, retired GOP senator and Episcopal priest Jack Danforth, bowed out and believed that any lawyer who brought the federal case was risking his credibility.
Clearly, the majority’s decision is inconsistent with the well-entrenched procedure used to count votes in the U.S. for over 200 years.
(5) Florida’s method of counting votes will apply in the future
The five conservative justices wanted their equal protection interpretation to invalidate only the counting of votes in Florida’s 2000 presidential election – not in any past or future elections. So they included in their decision the unbelievable statement that the ruling was “limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”
The part about “many complexities” is duplicitous and nonsensical, because the issue before the court was simply whether equal protection is violated by varying standards for counting votes. Furthermore, complexities in election cases are no greater than in many other types of cases.
With the “limited to the present circumstances” language, the majority was telling future litigants not to point to Bush v. Gore as a precedent for what should be done in their cases. For future cases, the court was signaling, litigants should look to the law used before the decision that ended the 2000 presidential election.
Plainly, in Bush v. Gore the majority not only departed from past equal protection rulings but also sent the unmistakable message that they would not do so again in future election cases. This position by itself is airtight proof that they knowingly and intentionally violated well-established law.
Because limiting a ruling to a single case is so inconsistent with the fundamental principle that the law applies equally to everyone, it’s not surprising that the Supreme Court has never before declared a particular interpretation of law to apply only to one case. And in this case, the party who benefited from the majority’s unique legal interpretation just happened to be their preferred candidate for president.
In fact, the majority didn’t even apply their equal protection decision consistently to the 2000 Florida election. If the Equal Protection Clause requires a uniform standard for counting votes, surely this requirement was violated by Florida’s system of machine counting.
A uniform standard does not exist when some Florida counties (mainly poorer and more Democratic ones) use old machines that fail to count almost 4% of the votes, while other counties (chiefly wealthier and more Republican ones) employ newer machines that miss less than 1.5% of the votes. Even among the various old machines, there are incongruities. For example, some count ballots having hanging chads while others do not.
To apply their ruling consistently, then, the majority should have invalidated the entire Florida presidential election. But they were not interested in invalidating non-uniform vote counting that supported Bush’s election.
Ironically, the majority violated the equal protection rights of the thousands of people whose legal votes were contained in the undervotes. Although those persons possessed a right equal to anyone’s to have their votes counted, the Supreme Court prevented their right from being upheld by stopping the count. And the court did it all in the name of upholding the equal protection of the laws.
It’s amazing that these actions were taken by conservative justices who in the past had little use for the Equal Protection Clause, which was enacted mainly to protect racial minorities. Erwin Chemerinsky, a constitutional law professor at the University of Southern California, says he “can’t think of a single instance where Scalia or Thomas has found discrimination against a racial minority, or women, or the aged, or the disabled, unconstitutional.”
Geoffrey R. Stone, a law professor at the University of Chicago, adds that Rehnquist, Scalia, and Thomas have apparently found only two uses for the Equal Protection Clause: to dismantle affirmative action programs and invalidate the recount process in the 2000 presidential election.
Because many of the undervotes were likely cast by racial minorities whose counties use the older voting machines, it was absolutely perverse to apply the Equal Protection Clause to prevent them – the very persons the Clause was intended to protect – from having their votes counted.
There is no question that the majority concocted a novel interpretation of equal protection, applied it inconsistently, and intended that it be used only once to benefit just one man. As Georgetown University law professor David Cole states, the court “created a new right out of whole cloth and made sure it ultimately protected only one person – George Bush.”
To call such a result “equal protection” is beyond preposterous.
(6) The U.S. Supreme Court put the Florida Supreme Court in an inescapable trap
On November 24, 2000, the U.S. Supreme Court decided to hear the case of Bush v. Gore. The court agreed to examine whether the Florida Supreme Court had violated Article II of the U.S. Constitution (and 3 U.S.C. Section 5) by changing the law after election day.
Bush’s lawyers argued, and the U.S. Supreme Court apparently agreed in a decision issued on December 4, that Article II prevented the Florida Supreme Court from changing any rules for the counting of votes subsequent to election day. So in the same decision, the U.S. Supreme Court warned the Florida court not to make any such changes.
Also in its November 24 ruling accepting the case, the U.S. Supreme Court declined to hear the Bush legal team’s argument that different standards for counting votes violated the Equal Protection Clause. This action, and the court’s subsequent silence on the equal protection issue in its December 4 ruling, indicated the court saw nothing wrong with Florida’s standard of counting votes and there was no merit to the equal protection challenge.
In light of those directions from the U.S. Supreme Court, the Florida Supreme Court was careful in its December 8 decision to not make any changes to the law regarding the counting of undervotes. Instead, the court applied longstanding Florida law – which came right from the Florida Election Code – in ordering that the applicable standard was that a vote be counted if there is “clear indication of the intent of the voter.”
Nevertheless, when this standard was ruled on by the U.S. Supreme Court on December 12, the majority held that it violated the Equal Protection Clause because different counties might use different methods of determining clear intent of the voter. This time, the majority said the Florida court had “the power to assure uniformity” and should have established a more uniform standard.
But if the Florida court had specified a more uniform standard than the one contained in the Florida Election Code, the majority on the U.S. Supreme Court would surely have ruled that the Florida court violated Article II by changing the rules after the election. They therefore would have stopped the counting on that basis.
In fact, what appears to have happened is that the Florida court’s decisions complied so well with Article II that the five conspirators on the U.S. Supreme Court, in order to stop the vote count, were forced to resurrect the equal protection argument they previously had treated as unworthy of consideration. At that point, they were grasping for anything to use to end the election.
So no matter what the Florida Supreme Court had done with the standard for counting the undervotes, the U.S. Supreme Court was going to find the action unconstitutional – either under the Equal Protection Clause or Article II. They had placed the Florida court in an inescapable trap and were simply not going to allow the votes to be counted.
(7) December 12 was not a deadline for counting votes
In the Supreme Court’s December 12 decision ending the election, the five conservative justices said there was no time to send the case back to the Florida court for the equal protection matter to be corrected and the counting to resume.
The electors in the 50 states were scheduled to meet on December 18 to cast their votes for president. Federal law (3 U.S.C. Section 5) provides that any contest or controversy over the selection of a state’s electors may be conclusively resolved “at least six days prior to” the meeting of the Electoral College (i.e., by December 12).
Noting in their decision that December 12 “is upon us,” the five conservatives found this date to be a mandatory deadline for resolving disputes over vote counting in the Florida presidential election. But as pointed out by the four dissenting justices, and later by legal scholars, there is no such deadline in the law.
Conservative law professor Michael McConnell, who teaches at the University of Utah, explained in a Wall Street Journal article that December 12 is merely a deadline “for receiving ‘safe harbor’ protection for the state’s electors.” That is, Congress’s ability to reject a state’s electors is more limited if the state has chosen them by that date.
Likewise, dissenting Justice John Paul Stevens noted the federal law “merely provides rules . . . for Congress to follow when selecting among conflicting slates of electors. They do not prohibit a state from counting . . . legal votes until a bonafide winner is determined.”
Stevens also pointed out that in the 1960 presidential election, “Hawaii appointed two slates of electors and Congress chose to count the one appointed on January 4, 1961, well after the Title 3 deadlines” of December 12 and 18. He continued that even if an equal protection violation was present, “nothing prevents the majority . . . from ordering relief appropriate to remedy that violation without depriving Florida voters of their right to have their votes counted.”
New York University law professor Larry Kramer says if a state fails to choose its electors by December 12, “nothing happens, the counting could continue.” According to Kinvin Wroth, an Electoral College expert and dean of the Vermont Law School, “a recount could have gone on right up to the last day of Congress’ joint session” on January 6, when the Electoral College votes were counted.
Although Florida has no statute requiring the counting to be completed by December 12, the five majority justices concluded that the Florida Supreme Court had said the state’s law contains such a requirement. Actually, the Florida court’s statements on this issue are ambiguous, at best, and were not interpreted by the dissenting justices in the same manner as the majority. The dissenters would have sent the case back to the Florida court for new standards to be set and the counting to resume.
Additionally, the majority’s conclusion is inconsistent with the longstanding Florida statutory and case law that the “will of the people” is the paramount consideration in election disputes – not a technical adherence to supposed deadlines. The Florida Supreme Court used this guiding principle in its decisions throughout the presidential election dispute.
Further, rules of statutory construction require federal and state statutes to be construed as not abridging a right protected by the U.S. Constitution – such as the right to have one’s vote counted. And it makes little sense to conclude that Florida prefers to send Congress an incorrect election result within the safe-harbor deadline than provide the correct result after the deadline.
Indeed, ten days after the U.S. Supreme Court ended the election, Florida Supreme Court Justice Leander J. Shaw wrote: “[I]n my opinion, December 12 was not a ‘drop-dead’ date under Florida law. In fact, I question whether any date prior to January 6 is a drop-dead date under the Florida election scheme. December 12 was simply a permissive ‘safe-harbor’ date to which the states could aspire. It certainly was not a mandatory contest deadline under the plain language of the Florida Election Code (i.e., it is not mentioned there) or this Court’s prior rulings.”
Counting the undervotes had been expected to take only about a couple of days. So there was plenty of time for the matter to be sent back to the Florida Supreme Court for new standards to be set, the counting to be completed, and the revised procedure to be reviewed by the courts.
Nonetheless, a majority of the U.S. Supreme Court chose to place more importance on imaginary and bogus deadlines than on the right of voters to have their votes counted. And the counting would have been completed by December 12, anyway, if the majority had not issued their ridiculous stay.
(8) Presidential elections are not for the U.S. Supreme Court to decide
The U.S. Constitution spells out the method for electing the president and includes no role for the Supreme Court. For this reason, many legal experts were astonished when the court agreed to accept the 2000 presidential election case.
Article II of the Constitution specifies that each state shall appoint, in a manner decided by the state’s legislature, a number of presidential electors equal to the total number of senators and representatives the state has in Congress. Each state legislature has decided to have the people vote for the state’s electors.
The Twelfth Amendment to the Constitution provides that after a state’s electors have been chosen, they are to meet and cast their votes for president. The electoral votes from each state are then transmitted to Congress, where the president of the Senate counts them in the presence of the Senate and House of Representatives.
The Twelfth Amendment goes on to direct that if no candidate receives a majority of votes from the electors, the House of Representatives will choose the president from among the candidates who received the three highest vote totals.
Implicit in Congress’s duty to count electoral votes is the authority to decide which ones to count. This fact is recognized in a federal law implementing the Twelfth Amendment (3 U.S.C. Section 15). The statute says Congress shall decide between a state’s rival electors as to which “is supported by the decision of such state so authorized by its [the state’s] law.”
Additional directions for counting the electoral votes – and resolving disputes over the votes – are contained in the federal Electoral Count Act of 1887 (3 U.S.C. Sections 5-7, 15-18). But in the entire procedure, no role is given to the Supreme Court by the Constitution or the statutes implementing the constitutional provisions.
The Founders of the U.S. assigned this subject completely to the states and Congress. They knew that political decisions are better made by elected officials having accountability to the public than by judges with lifetime appointments who will never face the voters.
Vincent Bugliosi remarks that “in a close, contested election, there’s no more authority for the Supreme Court to pick the president than for the Des Moines Rotary Club or Boston Symphony to do so.”
But in an act of extreme arrogance, the five majority justices did choose in flagrant violation of constitutional and statutory directives. Congress was not even mentioned in their decision.
So much for the claims about conservatives being in favor of “judicial restraint” and “strict construction” of the Constitution.
In this case, their attitude was more like “Constitution schmonstitution.” Or as the nineteenth-century railroad baron Cornelius Vanderbilt reportedly said: “What do I care about the law? H’ain’t I got the power?”
The lawlessness of the U.S. Supreme Court’s decision has been widely recognized by legal experts from across the political spectrum.
Shortly after the decision was issued, a full-page newspaper ad was placed in the New York Times by 554 law professors, of various political beliefs and from 120 law schools throughout the country, who strongly opposed the court’s action. They have since opened a website (www.the-rule-of-law.com) containing their protest. The list of those who have signed on has grown to 673 professors from 137 American law schools
The professors object that the majority justices “were acting as political proponents for candidate Bush, not as judges,” and “by stopping the recount in the middle, the five justices acted to suppress the facts.” They also state that “it is not the job of a federal court to stop votes from being counted.”
Among the many conservative legal scholars who have criticized the decision is Terrance Sandalow, former dean of the University of Michigan Law School. He says the court’s stopping of the vote count was “incomprehensible” and an “unmistakably partisan decision, without any foundation in law.” Similarly, conservative federal judge and law professor Richard Posner states that the court’s interpretation of equal protection was “wrongheaded” and its rationale “quite thin and unconvincing.”
Even Robert Bork, one of the most conservative legal minds in the country, acknowledges that the decision “does have major problems” and it “endorsed a new and possibly damaging rationale.”
Erwin Chemerinsky, a leading expert on constitutional law and the founding dean at the University of California, Irvine, School of Law, regards Bush v. Gore as “a bad decision” that “ignored basic, long-standing principles of constitutional law” and “obviously cost the Supreme Court in terms of its credibility.”
Moreover, dissenting Justice Stephen Breyer was quoted by Newsweek as calling the decision “the most outrageous, indefensible thing” the court had ever done. University of Chicago law professor Cass Sunstein describes the court’s equal protection argument as “a real embarrassment” and labels the decision “illegitimate, undemocratic and unprincipled.” Famed trial attorney Gerry Spence says the majority reduced themselves “to common thugs” by their unlawful acts.
Alan Dershowitz sums up the reactions: “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.”
Apparently, no law professors have opened a website to defend the court’s decision. Dershowitz has laid down an open challenge to publicly debate any law professor or Supreme Court litigator who dares to defend it.
There is no doubt that a majority of the U.S. Supreme Court cheated to stop legal votes from being counted while their candidate was ahead. Pure and simple: they violated the law to literally steal a presidential election.
It is inconceivable that the five conservative jurists would have gone on such a determined and reckless course of lawbreaking if Gore had been ahead and Bush needed the counting to continue. To borrow a phrase from a movie critic: calling their decision garbage is to give garbage a bad name.
Vincent Bugliosi states that these legal violations make the majority justices – in his words the “felonious five” – criminals in every true sense of the word. The main victims of their crimes were the 50 million Gore supporters whose votes were annulled and replaced by the felonious five’s own selection.
Think of it! A criminal act injuring 50 million Americans in all 50 states! As Bugliosi charges, the five conspirators who committed this outrageous wrongdoing “belong behind prison bars as much as any American white-collar criminal who ever lived.”
Not only did the felonious five show disdain for the rights of Gore voters, but they had no respect for the very foundation of the American government. Abraham Lincoln described the government as of the people, by the people, and for the people. The same principle was repeatedly expressed by the Florida Supreme Court in its decisions. By violating the law to suppress the will of the people, the felonious five treated the U.S. like a banana republic, where a cabal can underhandedly seize control of the country and force their own junta upon the populace.
Further, the felonious five did severe damage to the reputation and credibility of the U.S. Supreme Court and the legal system. Until this case, the Supreme Court was still considered by many as a forum where laws are applied and cases decided without political considerations driving the process. Unlike the vast majority of Supreme Court justices in U.S. history, the felonious five showed neither respect for that esteemed tradition nor any sense of responsibility to uphold it.
Bush v. Gore demolished the court’s reputation for impartiality, which could take decades to rebuild. In knowingly breaking the law to obtain a political outcome they wanted, the felonious five made the court appear as having the same moral character as the Watergate burglars. Alan Dershowitz writes, “No honest person can any longer trust them to do justice, as distinguished from politics.” Dissenting Justice John Paul Stevens lamented that the real loser in the election was “the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
The felonious five should have been impeached and removed from the court for their terrible, indefensible, and inexcusable acts. But that obviously is not going to happen.
To show respect for the rule of law and deter future courts from acting in the same lawless and shamelessly political manner, the felonious five should be publicly denounced as scofflaws who have given up any right to be respected or trusted as judges.
Finally, Bush v. Gore proves that changes are needed in the procedure for nominating and approving appointments to the Supreme Court and other federal courts. There are serious flaws in the process that resulted in the appointment of these five base, dishonest, and unprincipled political hacks.
[A much more thorough discussion of this subject is contained in the excellent books The Betrayal of America by Vincent Bugliosi, and Supreme Injustice by Alan Dershowitz. Also for more information on this subject, please see the article titled “Where There’s a Will There’s a Way to Invalidly Defend Bush v. Gore.”]