Immoral maxim #11: Misusing the 14th Amendment

IMMORAL MAXIM #11: BUSH v. GORE AND THE MISUSE OF THE 14th AMENDMENT

From Amendment #14, Section 1:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” July 9, 1868

Immoral Maxim #11 - Misconstruction Continued.

"The issue [of Bush v. Gore] was whether Florida's Supreme Court or the United States Supreme Court [would decide the election.]" (Post facto commentary by Antonin Scalia)

Issue #11: Courtly Commentary - The sad truth

“One thing, however, is certain. 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.” [Stevens, dissenting in Bush v. Gore (2000)]

Scalia’s own words reveal the naked political lens thru which he viewed the U. S. Presidential election controversy of November and 2000. Without gainsaying the fact that Supreme Court decisions are almost always inherently or implicitly political in some important measures, there are more judicious ways to view the Bush v. Gore controversy. Justice John Paul Stevens, who also was appointed by a Republican President, outlined the fateful improprieties of this improvident decision in a dissent which has never been answered satisfactorily because it cannot be answered satisfactorily. We only outline the case here with particular emphasis upon the handiwork of Justice Antonin Scalia. [F 11-1] The 5-4 per curiam decision was unfortunate enough, but Scalia’s brazen behavior and opinion were particularly egregious.
While debate about the case still continues and I shall reference other views than my own, for myself the decision itself is fairly criticized and properly condemned for two salient features of the Court’s action. First, contrary to ruling Federal and State precedents, on December 9, 2000 the Court became a FULL PARTY to the Bush Post-Election strategy to prevent a fair recount of the Florida Presidential vote. The legal team for Bush simply delayed the recount by all legal means until various statutory deadlines came into play. [F 11-2] Secondly, the U. S. Supreme Court intruded into the process to resolve a conflict which Constitutionally under Amendment Twelve should have been resolved by the branches of Congress. Let me be clear, it is my own judgment that once the Florida Supreme Court had certified the election after the recount had continued for another week or so, then it was possible, even likely that either the United States Senate or the U. S. House of Representatives would — in the end — probably have selected George W. Bush as the 43rd President whoever the Florida Supreme Court had certified as the winner of Florida’s electoral vote. If the result was, then, eventually to have become a naked political decision — well, then, better to have let the deed be done in full daylite (sic) as a political decision of the political branches. Furthermore, it is also not at all clear that a reasonably fair and legal recount supervised by the Florida Supreme Court would have resulted in an Al Gore victory. Even tho it seems quite clear that more Florida voters intended to vote for Gore intended to vote for Bush, the practical problem is that determining the intent of the voter after a voter, machine or instructional error is an inherently partial and incomplete remedy. Now let us continue with our tale, recapitulating a little in order to keep the sequence of events in a proper focus.
After a 5 week election recount controversy the winner of the Presidential Election of November 7, 2000 was decided by a United States Supreme Court decision on December 12, 2000. The decision, Bush v. Gore (2000) ended the recount of the Florida vote, a recount which the Florida Supreme Court had ordered. The Florida Court had taken this action after a number of voting irregularities in Florida were discovered and then challenged by the Campaign of Democrat Al Gore, Jr. In attempting to manage the challenges and controversy, the Florida Supreme Court — following the Florida Constitution and established national precedents — had tried to count all legal votes. [F 11-3] The Florida Supreme Court standard was that the intent of the voter, when it can be determined, was to be honored. During the 35 day post-election controversy Associate Justice Antonin Scalia was a de facto partner of Republican Presidential Candidate George W. Bush’s “run out the clock strategy.” The Bush campaign wished to delay the recount to such an extent that Constitutional, legal, and practical pressures for closure would end the recount. On Saturday of December 9 the U.S. Supreme Court’s issued a stay which ended the Florida recount. On Tuesday evening of December 12 the formal announcement of the U.S. Supreme Court’s per curiam 5-4 decision in the case of Bush v. Gore (2000) ended all hopes for a recount of the contested Florida Presidential results — a recount which had been necessary to preserve both the legal and moral legitimacy of the contested Florida Presidential vote.

Antonin Scalia’s contribution to Bush v. Gore was threefold. One, a short note accompanying the Supreme Court stay of the Florida recount on the morning of December 9, 2010 revealed that Scalia had already determined how he was going to vote before the oral argument set for the following Monday of December 11. Secondly, he joined the Court’s per curiam decision on Tuesday, December 12 which held that Bush’s rights could be irreparably damaged by continuing the recount while simultaneously and almost frivolously discounting and ignoring the equally pertinent claim that Al Gore’s rights could be irreparably damaged by if a proper recount was discontinued. Because the Court on its face refused to give due diligence to its consideration of both parties claims, the U. S. Supreme Court itself ended up in both casting a cloud upon the legitimacy of Bush’s election and in undermining its own integrity. [F 11-4] Finally, Rehnquist, Scalia, and Thomas joined in a tri-partie Concurrence which proffered additional legal reasons for reversing the Florida Supreme Court. However, a closer look at this concurrence reveals a recurring pattern in Scalia’s misunderstanding of the Fourteenth Amendment. In my view, whether this persistence is due to an improper intellectual fixation or moral chicanery, its results are tantamount to judicial malfeasance. We examine the three issues in turn.

On December 9, 2000 the Court ordered an end to the recount of the Florida Presidential vote pending their final decision which was to come three days later. Antonin Scalia added this note to the court’s order.

“The counting of votes that are of questionable legality does in my view threaten irreparable harm to [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election, ... Count first, and rule upon legality afterward, is not a recipe for producing election results that have the public acceptance democratic stability requires.” (Antonin Scalia, addendum to December 9, 2000 certiorari grant and order for stay preceding Bush v. Gore arguments and decision)

The issue before the Court was precisely whether the Florida recount then in progress was applying sufficiently high standards in their efforts to recover legally cast votes which had not been counted. There is no question for an honest observer that (1) legally cast votes had not been counted and (2) that, until the Florida Supreme Court Gore v. Harris decision of Dec 8, the remedies being utilized were not sufficiently uniform. Thus when Scalia addressed only the latter component of the pending legal contest as a justification for a stay, he indicated that his mind on the pending case was already made up. Dissenters to the stay made it clear that no immediate stay was required. Bush was going to get his day in a conservative Republican dominated Court (with Court family members such as Thomas’s wife already involved in the Bush election campaign). Scalia’s remarks make sense only as indicators of his active commitment to the Bush-Olsen strategy of delay. Like his Republican counterpart Florida Secretary of State Katherine Harris, during the election controversy Scalia acted as though his selection to an office of public trust was a license for purely partisan behavior. [F 11-5]
The actual 5-4 per curiam decision was of course the collective effort of Chief Justice Rehnquist, O’Connor, Kennedy, Scalia, and Thomas. One can charitably view their decision as the all-too-human inability to provide justice when one’s own biases are being challenged. There were rumors that Kennedy fretted about the decision. After eight years, retired Justice O’Connor expressed some public uncertainty about the decision. The decision itself was palpably flawed. In issuing their decision, majority disclaimed the decision’s precedential value “Our decision is limited to the present circumstances.” Then, 36 days after the election, in effectivo reversing a slew of decisions concerning recounts and a State Supreme Court’s presumptive role in determining state law, the majority — for the moment — imposed new election law standards which honored the wishes of one party [Bush campaign] while denigrating the wishes of the other [Gore campaign]. Furthermore, not unnoticed, in previous decisions the five members of the Bush v. Gore majority had had a pronounced tendency to defer to State courts even to the point of restricting or even overturning previous Supreme Court decisions of the Warren and Burger Courts. Their unbalanced advocacy of the Fourteenth Amendment to champion the “equal protection” clause for one party while denigrating the “equal protection” clause for the other party was also surprising. Heretofore, these “conservative” justices had been much more reluctant than their colleagues to rely on the Fourteenth Amendment in many of the cases which were presented to the Court. This was particularly true for one Antonin Scalia who had argued in numerous venues that one should not “read into” the 14th Amendment rights that were not there. In legalese, Scalia had tended to argue that the Court should not invoke “substantive due process.” In Bush v. Gore, however, Scalia shed his legal scruples as quickly as a stripper dropping her garments.

Even more telling of jurisprudential responsibilities gone awry was the tri-partie concurrence by Rehnquist, Scalia, and Thomas. In their concurrence they relied upon an 1892 decision, McPherson v. Blacker, which asserted that previous law “leaves it to the legislature exclusively to define the method” of choosing Presidential Electors. The Republicans in Florida and on the Bush legal team had argued that the Florida Supreme Court — while trying to resolve the conflicts between the Florida Constitution, governing legal precedents, and narrow findings by the Florida Secretary of State — were ‘making new law’ and thus preempting the legislature’s prerogatives. That sounds fine if one adapts a rather limited and overly literal perspective. But the Florida Supreme Court was dealing with procedural and mechanical irregularities which were in prima facie conflict with the provisions of the Florida Constitution. It is precisely because the Florida Constitution articulates principles which embody the “due process of law” and “equal protection of the laws” that the Florida Supreme Court was legally and morally required to review the widespread mechanical and procedural failures of the Florida Election equipment and their tendentious misuse by Florida state officials. Indeed, I think the Florida Supreme Court was somewhat reluctant to adopt the strong methods that were needed to bring the Florida recount under the aegis of the Fourteenth Amendment precisely because they did not want to appear either too partisan or too activist. In the light of history the issue now and henceforth before the American People is whether the United States Supreme Court in Bush v. Gore properly overruled the Florida Supreme Court’s decision in Gore v. Harris? And it seems quite clear to me that the Florida Supreme Court was much closer to both the Spirit and the Letter of the United States Constitution than was the United States Supreme Court when it ruled on 12 December 2000.

MORE GENERAL REFLECTIONS

More than a century before, the electoral votes of Florida and two other states in the contested Presidential election of 1876 (Garfield versus Tilden) had been shamelessly appropriated by post-election partisan judgment. And, just as the election of 1876 was followed by a political deal which ended reconstruction and helped to further the rise of the Klu Klux Klan and segregation in the South and their attendant evils, the illegitimate election of 2000 served to empower an administration with a disdain for domestic public justice and a contempt for international law, On the domestic side the Bush-Cheney administration’s zeal for enriching the rich has wreaked havoc on the social-economic health of our country. On the international side the Bush-Cheney administration’s dishonest initiation of an unlawful imperial war in Iraq and its unconscionable torture of innocent and guilty alike at Guantanamo, al Gharib and Bagram have brought the country into a deserved disrespect and provide an enormous psychological boost to those in the Islamic World who are tempted by the siren of Holy Warfare. On both the domestic front and the international front President George W. Bush and his Vice President displayed both a disdain and contempt for the Constitution and its principles.
Of course, the current international and domestic problems of our country are rooted in weaknesses and misdeeds of the general populace and of all political parties. Furthermore, some of our latest political follies are frequently but continuations of a checkered history which has included slavery, genocide, and imperialism as well as bravery, the defense of liberty, and the promise of economic and social opportunity. However, those who have the most power are those who have the most responsibility, and when they do wrong - whether they are agents of the few or the many - they are those who must be held to account. The most egregious misdeeds of the past eight years have been only partially and ineffectually addressed by the new Democratic President Obama and the 111th Congress. But there will be no progress in the United States until the records of its leaders’ misdeed are are clear for all to see. Those misdeeds, while not predictable, are clearly consequent to and largely consistent with the judicial misdeed committed by the Supreme Court in the case of Bush v. Gore argued on Monday, December 11, 2009 and decided on late Tuesday, December 12. The majority ruling, like many practices, policies, and ideas promulgated by Republicans and contemporary American conservatives, was but one of the more fateful examples of a political establishment that uses legal arguments and precedents as weapons to untether political, legal, and constitutional processes and principles from the public good and consent upon which all legitimate government derives.
Over a century ago, Senator John C. Calhoun of South Carolina and Chief Justice Roger Taney provided seemingly rational intellectual justification for the practice of chattel slavery in the United States. Today, conservative ideologues provided intellectual justification for the American support for continuing excesses of international capitalism and attendant military adventurism. Arguably, the most forceful legal proponent of ideological bolsters for conservative excess is Associate Justice Antonin Scalia.
Again, to be fair, Justice Scalia is a unique person. He provides defenses for conservative that are usually relevant, sometimes humorous, and quite frequently both pointed and intelligent. Indeed, I am happy to agree that in some cases, I find his opinions not only quite defensible, but even substantially correct. [F 11-7] However, this is not to be the discussion of one man’s strengths and weaknesses. We are discussing here a legal spear brazenly and illegitimately thrown into the heart of the American popular will — and at the point of this spear we find the opinions and votes of one Associate Justice Anton Scalia.

NOTES; BIBLIOGRAPHY:

FOOTNOTES

[F 11-1] In addition to the dissents, the two 2001 books by Bugliosi [The Betrayal of America] and Dershowitz [Supreme Injustice] explore the more glaring improprieties and legal inconsistencies of the Court majority’s acts and opinions. A brief synopsis of important books is found at the end of the end of the bibliography.
[F 11-2] The book by Jake Tapper (2000) [Down and Dirty] provides the best insight into the nitty gritty of the political and legal machinations of both campaigns and their legal teams. Neither party is spared some trenchant criticism. Again, we note that a synopsis of important books concerning the controversies is found in the bibliography.
[F 11-3] Merzer’s book [The Miami Herald Report: Democracy Held Hostage], written several months after Bush had been inaugurated, examined the uncounted ballots, but was somewhat inconclusive.
[F 11-4] Again, many of the damning details of this judicial misdeed are contained in the two books by Bugliosi (2001) and Dershowitz (2001). Cf. Bibliography for full citations.
[F 11-5] Harris had already compromised the Florida election by pushing for a purge of the rolls which led to the improper removal of several thousand legal voters. [For example, if a voter had a name similar to an ineligible felon their name would be removed without notification to the person listed in the local rolls.] Later, much of the delay in the Gore campaign’s attempt to obtain entitled legal relief was due to her peremptorial stalling tactics [usually overruled a few days later]. The titles of the Florida cases tell the story: McDermott v. Harris, Palm Beach Canvassing Board v. Harris, Gore v. Harris.
[F 11-6] I suspect that the best argument for the Court majority’s decision is found in Posner’s Breaking Deadlock. In this book Posner develops the argument found in the Rehnquist, Scalia, and Thomas concurrence. Judge Posner, an independent Federal appeals Court judge, is clearly much better informed and knowledgeable about the law than the author could ever hope to be. My only response to his superior craft in framing legal and constitutional argument is that legal and moral assumptions are sometimes dispositive in how any of us read the Law and the Constitution… Again, see the bibliographical synopsis of books about Bush v. Gore to explore other perspectives.
[F 11-7] This is, of course, the thrust of Appendix A - Commendations for Justice Antonin Scalia.
[F 11-8] Seven justices agreed that there were serious irregularities and inconsistencies in the Florida recount procedures. The debate was about the remedies. The historical bone that still remains in the democratic throat is that the record of irregularities in how the votes had been counted in the first instance were ignored while the smaller and more manageable irregularities in the recount were considered dispositive. The dissents by Souter and others addressed these specific issues.

SUPREME COURT CITATIONS:
Bush v. Gore, 531 U.S. 98 (2000)
McPherson v. Blacker, 146 U.S. 1 (1892)

Judicial Malfeasance of Bush v. Gore (2001).
Bugliosi, Vincent (2001). The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose our President. Thunder’s Mouth Press: New York.
Dershowitz, Alan M. (2001). Supreme Injustice. Oxford Univ. Press: New York.
Dionne, E. J. & Kristol, William, Editors (2001). Bush v. Gore: The Court Cases and the Commentary. Brookings Institution Press: Washington D. C.
Merzer, Martin (2001). The Miami Herald Report: Democracy Held Hostage. St. Martin’s Press: New York.
Posner, Richard A. (2001). Breaking the Deadlock. Princeton Univ. Press: Princeton.
Rakove, Jack N. (2001). The Unfinished Election of 2000. Basic Books: New York.
Sammon, Bill (2000). At Any Cost: How Al Gore Tried to Steal the Election. Regnery Publishing Inc.: Washington, DC.
Tapper, Jake (2000). Down and Dirty: The Plot to Steal the Presidency. Little Brown and Company: Boston.

Bush v. Gore: Synopsis of Literature.

Many books and articles about the recount controversy were written during late 2000 and 2001. Very informative in reporting the actual problems of the election recount and in uncovering competing political and legal responses were the books by Merzer and Tapper. The book by Dionne & Kristol provides perhaps the most civil and even handed representation of the public debate during the extended contest. The book contains the main court opinions plus an extensive and representative selection of newspaper and magazine articles from both sides of the late 2000 controversy. The book by Rakove, a collection of 6 essays presents a more learned discussion of the underlying issues. As indicated in the footnotes, the books by Bugliosi and Dershowitz present the most salient moral and legal problematics of the Court’s decision. The book by Sammon focuses on some questionable acts by the Gore campaign, but much of it is tangential to the actual legal contest. Sad to say, the later 2004 book by Zelden, also titled Bush v. Gore, is but one indicator that the structural problems and inequities revealed during the election have not been resolved. There is, of course, no question that how one views the ever-present tension between the letter of the law and the demands of democratic justice color our views of this controversy. The perspective of this work, of course, is that such differences are not sufficient to justify rank hypocrisy. The best that can be said for a partisan defense of Bush v. Gore is that the Court, overly fearful that the Democrats might improperly count too many discarded Gore ballots, took the law into their own hands and, under cover of law, bent the results to their own personal and overly partisan ends. [F 11-8]