Law gone away

Remember how the Republicans stole Election 2000? Most of what they did was arguably legal, an exception being the mob of Republicans led by New York Congressman John Sweeney that literally shut down the vote recount in Miami-Dade County by raising a violent ruckus at the Canvassing Board headquarters.

The most legal aspect of the theft (and the most reprehensible, according to Alan Dershowitz) was the U.S. Supreme Court’s politically partisan rulings on the Florida vote recount that set a dangerous and disgraceful precedent for judicial meddling in the electoral process.

As Dershowitz points out in this cogently reasoned brief (it can scarcely be called a book), the five justices ruling for the majority (Rehnquist, Scalia, Thomas, Kennedy and O’Connor) ignored their own judicial precedents on the Equal Protection clause of the Fourteenth Amendment and their own much-publicized opposition to judicial activism, to render a final decision that left even many conservative legal scholars gasping and grumbling.

“Illegitimate, undemocratic, and unprincipled,” fumed Professor Cass Sunstein. Vincent Bugliosi characterized the majority justices as “criminals in the truest sense of the word,” accusing the Court of acting as “a knowing surrogate for the Republican Party instead of being an impartial arbiter of the law.” Dershowitz points out that such actions on the part of any other group of judges, state or federal, would have resulted in a formal investigation into outrageous violations of the judicial canons of professional responsibility. Conveniently for these justices, the Supreme Court has always exempted itself from even the mere possibility of such an investigation.

In addition to demonstrating how all of the five majority justices reversed their own previously expressed legal opinions and contradicted their long-held judicial philosophies, Dershowitz argues that the five should have recused themselves from this case. Why? Because of, at minimum, the appearance of conflict of interest. O’Connor, for example, was widely reported to have bewailed the possibility of a Gore victory as “terrible.” Her husband stated that she wants to retire soon but would only do so when a Republican is president and can nominate her successor. Scalia’s two sons were actively involved in the Bush campaign, as was Clarence Thomas’ wife. Kennedy is obsessed with becoming Rehnquist’s replacement as chief justice, something that could only occur under a Republican president. And the unabashedly partisan Rehnquist made it abundantly clear that he has waited to retire until a Republican administration is in power.

This is by no means the first disgraceful decision that the Supreme Court has rendered. Consider Dred Scott, which essentially defined all African-Americans as property. Or Plessy v. Ferguson, with its infamous “separate but equal” principle. In 1872, in Bradwell v. State, the Court held that women were unsuited to the practice of law. And, most recently, in 1942’s Korematsu v. the United States, the Court approved putting American citizens of Japanese descent in detention camps during World War II.

But Dershowitz describes the Bush v. Gore decision as “uniquely corrupt,” because it hijacked the political process, illegitimately intruding the Court into the American electoral process as never before.

Dershowitz argues for reforms, to subject the Supreme Court justices to ethics scrutiny, and so on—measures that are almost certain never to be enacted. The second to the last word on this sorry mess should be left to Justice John Paul Stevens who, in his eloquent dissent in Bush v. Gore, wrote: “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. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

The last word? Perhaps it’s the quotation from W.H. Auden that serves as the epigraph to this book:

Others say, Law is our Fate:
Others say, Law is our State;
Others say; others say
Law is no more,
Law has gone away.