The Betrayal

Nothing about the 2000 election matters nearly as much as the ugly means by which it was brought to an end. Throughout our history, with the terrible exception of 1860, every party has been able to live with the victory of an opposing candidate for president. One reason is our confidence in a legal system that is supposed to stand apart from politics and limit the consequences of political defeat. The presidency of George W. Bush may not be the republic's happiest era, but it will be endurable. What is not so easily endured is the Supreme Court's betrayal of our trust.

No one would feel that sense of betrayal if the majority of the Court had acted consistently with its judicial philosophy. Suppose the facts had been reversed and Al Gore had been leading by a small margin in Florida when he appealed to the Supreme Court to stop a recount requested by Bush. Suppose he had also argued that differences among counties in standards for judging ballots represented a violation of constitutional guarantees of equal protection. Consistent with their past decisions, Justices Scalia, Thomas, Rehnquist, Kennedy, and O'Connor could have ruled that states' rights precluded federal jurisdiction. Likewise, they could have dismissed the equal-protection claim as lacking merit as well as precedent. Who seriously doubts that this is precisely what they would have done? Such a decision would have helped Bush and hurt Gore, but because of its intellectual consistency with the justices' previous opinions, no one would have had any basis for questioning the integrity of the Court.

Instead, in the actual circumstances, the five justices in the majority discarded any semblance of judicial restraint, abandoned their own principles of states' rights, failed to devise even a minimally persuasive constitutional basis for their ruling, and intervened in the political process with the unprecedented effect of determining the next president. Even more astounding than the Court's final decision was the stay that it issued three days earlier, on December 9, stopping the Florida recount when it had just begun. Hypocritically justified as avoiding "irreparable harm" to Bush, the stay did irreparable harm to Gore--as became apparent when the Court issued its final decision and said there was no time for a remedy, supposedly because of the December 12 deadline for state certification of electors. That, however, was only a deadline for states to secure guaranteed acceptance of their certified electors by Congress; the electors were not actually going to vote for another week, and Congress has in the past accepted later changes in electoral votes. The Court's termination of the recount had no basis in the law--but there it was, a usurpation of power at the highest levels of the judiciary from which there was no appeal.

Some might say, in defense of the Court's majority, that the four justices in dissent were also acting in a partisan manner, but this is by no means clear. Two were Republican appointees. Moreover, their arguments did not contradict their previous opinions. It is the majority's contradiction of its own philosophy that so clearly marks it as partisan.

Yet the decision wasn't just partisan; it was also self-interested. Everyone knew during the past year that the election was in substantial measure about the future of the Supreme Court. Delicately balanced between conservative and moderate factions, the Court would likely be tipped one way by Gore's nominees, the other way by Bush's. The most straightforward explanation for the decision in Bush v. Gore is that the five justices in the majority acted in their own long-term self-interest, ensuring that their side will continue to dominate the Court.

The five-to-four decision highlights just how important every vote on the Court is and how different a political world we face today, compared with Republican presidencies during the past half-century. The last time Republicans controlled both the Congress and the White House, during 1953 and 1954, the Supreme Court was filled with New Deal appointees and assumed the leading role in progressive change. Even under Reagan and Bush, the Court could still be counted on to limit the damage of illiberal legislation and executive rulings. Many people have taken false comfort from the close margins in Congress, assuming that although Republicans hold power in both the congressional and executive branches, they won't be able to do much with it. But the trouble is that beyond Congress, there will likely be no judicial line of defense against policies that would never have been upheld in the past.

The difficulty isn't simply that the dominant faction on the Court is conservative. The decision in Bush v. Gore had nothing to do with conservative philosophy. The justices in the majority have made it clear that even their own principles will not be allowed to stand in the way of the outcomes they prefer.

The conventional wisdom is that we should all forget the battle over this year's presidential election and move on. It is as if a crime had been committed in broad daylight by someone so powerful that the witnesses were told they had no alternative but to return home and be silent. We will have to move on, but what happened this year cannot be forgotten. It ought to serve as a constant reminder about how great and necessary a struggle we face to restore the integrity of our democracy. ¤

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