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January 15,  2001
Lawyers Protest U.S. Supreme Court

By Mollie Dickenson

As George W. Bush and his backers descend on Washington for days of celebration and years of governing, other Americans insist on reminding the world of the unprecedented use of political and judicial power that got Bush here.

On Saturday, 554 law professors from 120 law schools signed a full-page New York Times ad protesting the Dec. 9 halting of a Florida recount that had threatened to reverse Bush's tiny lead.

"By stopping the vote count in Florida, the U.S. Supreme Court used its power to act as political partisans, not judges of a court of law," read the ad.

In an interview, one of the law professors deplored the fact that one of his primary teachings to his students over a 40-year career in constitutional law -- that the U.S. Supreme Court acts as a nonpartisan institution despite differing judicial philosophies -- had been rendered null and void by the actions of the five justices who stopped the count.

"Only Bush's political influence was threatened, and correcting that is not a function of the Supreme Court," said Terrance Sandalow, dean emeritus of the University of Michigan Law School.

Sandalow considers himself to be a moderate judicial conservative, having opposed the Roe v. Wade abortion ruling and having supported the appointment of conservative jurist Robert Bork to the Supreme Court.

The newspaper ad also stressed the political diversity of signers. The ad stated:

"We are professors of law at 120 American law schools, from every part of our country, of different political beliefs. But we all agree that when a bare majority of the U.S. Supreme Court halted the recount of ballots under Florida law, the five justices were acting as political proponents for candidate Bush, not as judges.

"It is not the job of a federal court to stop votes from being counted. By stopping the recount in the middle, the five justices acted to suppress the facts. Justice [Antonin] Scalia argued that the justices had to interfere even before the Supreme Court heard the Bush team's arguments because the recount might 'cast a cloud upon what [Bush] claims to be the legitimacy of his election.'

"In other words, the conservative justices moved to avoid the 'threat' that Americans might learn that in the recount, [Vice President Al] Gore got more votes than Bush. This is presumably 'irreparable' harm because if the recount proceeded and the truth once became known, it would never again be possible to completely obscure the facts.

"But it is not the job of the courts to polish the image of legitimacy of the Bush presidency by preventing disturbing facts from being confirmed. Suppressing the facts to make the Bush government seem more legitimate is the job of propagandists, not judges.

"By taking power from the voters, the Supreme Court has tarnished its own legitimacy. As teachers whose lives have been dedicated to the rule of law, we protest."

Break with Philosophy

In the interview, Sandalow said the Florida decision "cannot be explained by the conservative judicial philosophy of the five -- I want to call them Republican, rather than conservative -- justices. It can only be understood as a politically partisan decision."

He said the decision went completely counter to the justices' own often-expressed judicial and constitutional philosophies. Sandalow cited three areas where the five justices deviated from their own conservative judicial philosophy.

"First, their previous decisions have emphasized their respect for state judiciaries," said Sandalow. "Second, has been their reluctance to expand the interpretation of the equal protection clause of the 14th Amendment to the Constitution. And third, has been their belief that they have no warrant to cure every social ill.

"All three strands of the conservative philosophy they previously expressed are inconsistent with their decision. One can only conclude that they voted as they did because they wanted Bush to be president. And that's very disturbing.

"I am hard pressed to think of any Supreme Court case -- ever -- that was decided on partisan grounds, although some students of the Court believe these same justices' recent decision not to allow statistical sampling in the Census comes close."

Like the Bush v. Gore decision, statistical sampling would have undoubtedly helped Democrats whose constituents are consistently undercounted.

The Three Points

Sandalow, addressing the first point, said: "The idea that the Supreme Court is the highest court in the land is not true. It is only true with respect to issues of federal law.

"Regarding issues of state law, a state supreme court is the highest authority, and has the final word on the meaning of state law. In Bush v. Gore, the Supreme Court Five failed to show deference to the Florida Supreme Court, and three of the five actually reversed the Florida court on the meaning of its own law.

"There are very limited situations when the Supreme Court overrules a state supreme court, but none were involved in this case. And even when the Court does have that power, it can do so only when the state court is extravagantly wrong. And as [justices] Ginsburg and Breyer demonstrated, one cannot say that about this case."

As to the second point, the interpretation of the equal protection clause, Sandalow said, "the decision of the five so-called conservative justices -- and they should be named, William Rehnquist, Antonin Scalia, Clarence Thomas, Sandra Day O'Connor and Anthony Kennedy -- that the way in which the recount would be counted was a violation of the equal protection clause was unprecedented.

"Although justices [David] Souter and [Stephen] Breyer joined in this judgment, they at least would have allowed the Florida Supreme Court an opportunity to establish uniform counting standards, and would have allowed the count to go forward.

"It's extremely unfortunate and quite unwise to have done this in a politically charged case," said Sandalow. "There have always been issues about vote counting, but we've never had a decision that the failure to have consistent standards is a violation of the equal protection clause.

"To decide so important an equal protection issue in two days without the opportunity to think through their decision was very unwise. And that's especially true because the Constitution gives to Congress the power to decide disputes such as this.

"For that reason alone, they should have left it to the Congress. What troubles me is my fear that these five Republicans inappropriately injected themselves into the case because they feared that Gore would get more votes than Bush."

On the third point, that the Supreme Court does not have the authority to correct every social ill, said Sandalow, the five justices "may have felt that the Florida judges were being excessively partisan, but if that were true, the constitutional remedy is in Congress, not in the Supreme Court.

"Lawsuits are limited in what they address. For instance, the disenfranchisement of African Americans could have been taken into account in Congress, but not in that lawsuit.

The 'Deadline'

"Also, the Court was quite aware that the so-called Dec. 12 deadline was not a mandatory deadline under federal law. The context did not appear to require that the date was to be met at the expense of counting the votes.

"The question whether the Florida legislature intended it to be so under state law should have been left to the Florida Supreme Court. The failure of the five Republican justices to do so was an outrageous usurpation of the Florida Supreme Court's authority."

Finally, said Sandalow, "Scalia wrote that there would be irreparable harm to Bush if illegal votes were counted. But that's quite wrong. If illegal votes were counted and threatened the stability of the government, that's one thing, but there was never any danger of that.

"Only Bush's political influence was threatened, and correcting that is not a function of the Supreme Court."

(This article is based on a radio interview on the "Mollie Dickenson Show" at WPFW, 89.3 FM.)

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