Is the Supreme Court Disgraced?

A Judicial Coup d'État?

However misapplied, the court's strong affirmation of the right to vote must be embraced as a clarion call for an ambitious national reform of the way we vote.
—lead editorial, The New York Times, December 17, in reaction to the Supreme Court decision in Bushv. Gore.




The Rehnquist Supreme Court's ruling that, in effect, made George W. Bush president has been furiously condemned by an array of law professors, editorial writers, and columnists, among many others.

Yet, when the supreme court of Florida ordered the recount, by hand, of disputed votes, two of the three dissenters to that ruling—which was vacated by the U.S. Supreme Court—predicted how our highest tribunal would end this case and the election.

Chief Justice Charles Wells wrote: "Continuation of this system of county-by-county decisions regarding how a dimpled chad is counted is fraught with equal protection concerns which will eventually cause the election results in Florida to be stricken by the federal courts or Congress."

Also in dissent, Justice Major Harding anticipated the arguments around the country that, in fairness, the U.S. Supreme Court should have allowed the recount to continue: "Even if such a recount were possible, speed would come at the expense of accuracy, and it would be difficult to put any faith or credibility in a vote achieved under such chaotic conditions."

These prophetic dissents by members of the Florida Supreme Court were largely ignored by the media, in all its forms, and by the hordes of lay and professional "experts" who told the country that the United States Supreme Court had lost its integrity and credibility.

The cover of the December 25 New Republic showed a photograph of the United States Supreme Court over which was superimposed, in large capital letters, DISGRACE.

Inside that issue, Georgetown University law professor Jeffrey Rosen, who often writes on constitutional law, fulminated that the Rehnquist Supreme Court's Bushv. Gore decision resulted in "destroying the legitimacy of the Supreme Court." I hope his students have access to second opinions.

In the December 25 New Yorker, Hendrik Hertzberg, who has been writing all along as if he were a pro bono publicist for the Democratic Party, said of Al Gore: "He lost the post-election, in which the franchise, it turned out, was limited to certain members of the Supreme Court."

In his December 19 New York Post column, Sidney Zion described "the judicial coup d'état that putsched George W. Bush into the White House." But my old friend Sid couldn't quite get the count right. He wrote of the 5-4 majority, but overlooked the fact that seven justices—not only Rehnquist and Scalia—found a constitutional violation of equal protection of the laws in the way the Florida ballots were counted. Of the seven, Justices Breyer and Souter joined the two dissenters in the 5-4 decision that stopped the recount. The four believed that the remedy was to allow the recount to continue.

In the December 17 Daily News, Floyd Abrams, whom I often call for advice on First Amendment cases, wrote an article titled: "Supreme Injustice." Said Abrams, "The highest court in the land imperiled its own stature as our nation's impartial arbiter of law."

Richard Briffault, vice dean and professor of election law at Columbia Law School, said in the December 14 Newsday: "The Supreme Court runs the very serious risk that its decision will be seen as an act of political partisanship and not constitutional principle."

Anthony Lewis, who has written and lectured widely on the rule of constitutional law, approvingly quoted, in his December 16 New York Times column, this denunciation of the Supreme Court by the Financial Times columnist Philip Stephens: "Deciding a case of this magnitude with such disregard for reason invites people to treat the court's aura of reason as an illusion."

On December 15, the New York Post reported that Terry Moran of ABC-TV News said the Supreme Court's decision "opens up more wounds rather than closing them." On the same page, Aaron Brown, also of ABC-TV, added solemnly that "many Americans . . . see politics written all over the Supreme Court's 5-4 ruling."

And CBS-TV's distinguished constitutional law expert, Bryant Gumbel, intoned authoritatively: "Al Gore was given the bum's rush by five very conservative justices." Like Sidney Zion, Gumbel left out the relevant fact that seven of the justices wrote that what was happening in Florida violated the Fourteenth Amendment's guarantee of "equal protection of the laws."

In the December 17 Newsday, the lead in Les Payne's column was, "They stole it fair and square. This seems to be the Supreme Court's mixed view of Governor George W. Bush's promotion to be the 43rd president of the United States."

Payne had written previously, and accurately, that there were serious denials of equal protection of the laws to blacks and other voters in Florida before Election Day on November 7; the various newspapers that are now conducting recounts of the ballots should also be sending out teams to investigate those abuses.

But journalists should also investigate this report in the December 20 New York Post by Stephen Bronars, chairman of the University of Texas economics department, and John Lott, a senior research scholar at Yale Law School:

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