anniversary of Bush v. Gore

I can’t quite believe that it’s already been ten years since this decision in the wake of the 2000 Presidental election. I wrote this afterwards and I reproduce it below — it is my first political polemic (and certainly wasn’t my last).

There are two things of note I would add here. First is that Justice Sandra Day O’Connor has since publicly regretted her role in this decision: Justice O’Connor: Bush v. Gore Opinion Not “Court’s Best Effort”. In addition, this decision has not been cited by any other court cases (as per its own caution at the end of the decision): The Supreme anniversary: Where Bush v. Gore ranks in the pantheon of shady elections. This article also goes on to outline other effects from this decision: it’s worth reading the whole thing.

The Kingmaker Court and the Electionless President

(written December 13, 2000)

On December 9th [2000], the U.S. Supreme Court effected a judicial coup d’etat in the United States of America when it stopped the manual recount underway in Florida. That action guaranteed that, no matter what decision was reached, the manual recount could not possibly be completed by the traditional December 12th deadline for certifying state electors to the Electoral College.

Not only did the Supreme Court shatter its reputation for impartiality, throw out the votes of an entire state, it also arrogated to itself the privilege of selecting the 43rd President of the United States. Not since the Dred Scott decision of 1857 in which the Supreme Court ruled that all blacks, slave or free, were not and could never become citizens of the United States, has the Court sunk so low.

Justification for this extraordinary and unprecedented decision rests on a remarkable reversal of the Supreme Court’s hitherto faithful adherence to the murkily defined concept of ‘Federalism’ which narrowly interprets states rights as paramount over federal rights where the constitution does not explicitly reserve the issue at the federal level. Notwithstanding that ‘federalism’ appears nowhere in our Constitution, the Supreme Court has until now consistently ruled unconstitutional legislation which interferes with the rights reserved to the states. Some of the previous cases in which the Supreme Court ruled legislation as unconstitutional based on this supposed separation of state and federal rights include the Violence Against Women Act.

Interestingly, the Constitution explicitly reserves the right to appoint electors for the Presidential Electoral College to the individual state. Sensibly, in a putatively democratic nation, all the states employ some form of popular election and most award all their electoral votes to the winner. Some apportion their votes in proportion to the votes counted. In either case, the choice of electoral votes is guided by the popular vote within that state.

Florida’s Supreme Court chose to recount disputed ballots to resolve the conflict over its election results. By any reading of the Constitution, in accordance with the Supreme Court’s previous decisions and opinions, any onlooker would have concluded that the Supreme Court would have ruled that the state was properly exercising its own constitutionally-granted powers. More to the point, the onlooker would have concluded, prior to December 9th, 2000, that the Supreme Court would have let Florida’s Supreme Court handle the situation.

Instead, the Supreme Court dramatically signaled its partisan bias by reversing itself on a case of federalism that, for a change, was widely seen to benefit the liberal camp. In doing so, the Supreme Court threw its lot in with the conservative element of this country and thus in one astonishing act, dropped all pretense of impartiality and nonpartisanship normally associated with the judicial arm of the United State’s government.

That the Supreme Court is in addition deeply divided, with all the conservative justices voting in favor of overturning the state of Florida’s constitutional rights, and the liberal justices voting against, only worsens the situation. There is no suggestion, as there might have been under a unanimous decision, that the decision is somehow impartial and constitutionally based despite one’s political leanings.

The only possible impartial solution that would have remained true to the principles this country was founded on 224 years ago would have been to conduct a *complete* recount of *all* the votes in the state of Florida, including all votes that either side attempted through legal action to block from being counted. Without such a count, the legitimacy of the Florida electors remains under a cloud, with perfectly valid objections to whoever were to assume the presidency under such conditions. As a parenthetical aside, it is astonishing that any presidential candidate would be satisfied to gain the presidency under such conditions. That, unfortunately, speaks volumes about the true motivations of these candidates.

Is it too much to say that this country has undergone a judicial coup d’etat? Not when the direct result of the Supreme Court justices’ actions is to install our next president.

What can we expect the Kingmaker Court to do four years from now, especially if their puppet president is able to select the next two or three replacement justices and swing the court even more into politics? Oddly, the present court does not seem to be concerned with one of the most fundamental Constitutional principles: the separation of the judicial, legislative, and executive branches of the government.

So as the United States of America moves at last into the 21st century, it is a country no longer governed by the will of the people, but by a judicial oligarchy and an illegitimate president. Democracy is dead. The president is dead. Long live King George.

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