Exclusive: Both the mainstream U.S. press and some on the Left underestimate the danger to the Republic from having a Republican majority on the Supreme Court rendering decisions based on partisan needs not constitutional principles, a threat that surfaced in December 2000 and continues today, writes Robert Parry.
By Robert Parry
As the Republican-controlled Supreme Court gets to work writing its opinion on the Affordable Care Act – with many observers expecting that the five GOP justices will strike the law down – it’s worth recalling how a similar batch of Republican justices twisted the Constitution to hand George W. Bush the White House in December 2000.
It’s also interesting to remember how the opinion leaders of Washington prepped the American people to accept the undemocratic outcome of Bush’s “victory” over Al Gore, rather than insist that all Florida ballots be counted and demand that Republican leaders desist from sending mobs to Florida to intimidate vote counters.
In fall 2000, to take such pro-democracy positions earned you epithets like “Gore apologist” or “Democratic partisan.” Though Bush’s campaign was sponsoring the organized mobs and rushing to court to block recounts, “responsible journalists” were adopting the hackneyed position that both sides were equally at fault.
The conventional wisdom was that Bush should just be declared president for “the good of the country.”
For instance, after a GOP mob disrupted the Miami recount just before Thanksgiving Day, Washington Post columnist Richard Cohen wrote: ”Given the present bitterness, given the angry irresponsible charges being hurled by both camps, the nation will be in dire need of a conciliator, a likable guy who will make things better and not worse. That man is not Al Gore. That man is George W. Bush.”
In a similar vein, after Bush won some lower state court rulings blocking the recounts, New York Times columnist Thomas L. Friedman expressed the view of many mainstream journalists, welcoming the likely declaration of Bush as the “winner.”
“Slowly but surely, in their own ways, the different courts seem to be building a foundation of legitimacy for Governor George W. Bush’s narrow victory,” Friedman wrote. “That is hugely important. Our democracy has taken a hit here, and both Democrats and Republicans must think about how they can start shoring it up.”
It didn’t strike Friedman or most other big-name pundits that perhaps the best way to shore up “our democracy” was to let all the legal votes in Florida be counted and declare whoever ended up on top the winner.
A Disastrous Presidency
In retrospect – knowing how disastrous Bush’s eight years in office were for the United States and the world – you might have thought that these Washington “wise men” would have worried about the prospect of handing such an inexperienced person the most powerful position on earth, especially under a cloud of electoral fraud.
But Official Washington’s thinking was that the likes of Richard Cohen and Thomas Friedman could simply assert Bush’s “legitimacy” by delegitimizing those who thought that a core principle of democracy was for the voters to decide who should lead.
The elitist attitude would be a troubling preview to how the mainstream media would perform two years later by embracing Bush’s false claims about Iraq’s WMD and rallying the nation to an unprovoked invasion of a country at peace.
However, in fall 2000, this smugness about knowing better than the American voters who should be President represented the atmospherics around the U.S. Supreme Court battle titled Bush v. Gore. Official Washington was overwhelmingly for Bush and those few idealists who believed in that messy process called democracy were supposed to stand down.
So, Bush had a powerful tail wind when he took his anti-recount fight to the U.S. Supreme Court, after the Florida Supreme Court on Dec. 8 ordered a statewide examination of disqualified votes to see if the ballots had been kicked out by counting machines incorrectly.
In its ruling on the recount issue, the state court hewed to the principle that the right of voters to have their votes counted – when their intent could be clearly discerned – trumped legal technicalities that Bush and Republican state officials had cited in opposing a recount.
Bush rushed to the federal courts seeking an injunction to block a resumption of the recounts, claiming he might suffer “irreparable injury” if the vote-counting resumed. The conservative U.S. Appeals Court in Atlanta threw out Bush’s laughable claim, but Bush knew he had an ace in the hole, the Republican-controlled U.S. Supreme Court.
As Bush’s lawyers appealed to the U.S. Supreme Court, the state-court-ordered recount in Florida began. County by county, election canvassing boards moved smoothly through the machine-rejected ballots, discovering hundreds that clearly had registered choices for presidential candidates.
Gore gained some and Bush gained some. When there was a dispute, the ballots were set aside for later presentation to Leon County Circuit Judge Terry Lewis, who had been named by the Florida Supreme Court to oversee the process and was given wide leeway to make judgments about which ballots should be counted.
“The Circuit Court [Lewis] is directed to enter such orders as are necessary to add any legal votes to the total statewide certifications and to enter any orders necessary,” the Florida Supreme Court ruling stated. “In tabulating the ballots and in making a determination of what is a ‘legal’ vote, the standard to be employed is that established by the Legislature in our election code which is that the vote shall be counted as a ‘legal’ vote if there is ‘clear indication of the intent of the voter.’”
As the recount proceeded, the chairman of the Charlotte County canvassing board posed a question to Judge Lewis: what should be done with ballots in which a voter both punched the name of a presidential candidate and wrote the name in?
These so-called “over-votes” – containing two entries for President although for the same candidate – had been kicked out of the counting machines, too, along with the “under-votes,” those where the machine couldn’t discern a vote for President.
The Florida Supreme Court ruling had only specified tallying the under-votes, but the ruling also had instructed Judge Lewis to count every vote where there was a “clear indication of the intent of the voter.”
The over-votes demonstrated even more clearly than the under-votes who the voter wanted. So Lewis sent a memo to the state canvassing boards, instructing them to collect these over-votes and send them along with under-votes still in dispute.
“If you would segregate ‘over-votes’ as you describe and indicate in your final report how many where you determined the clear intent of the voter,” Judge Lewis wrote, “I will rule on the issue for all counties.”
Lewis’s memo – a copy of which was later obtained by Newsweek magazine – might not have seemed very significant at the time, but it would grow in importance because the over-votes were discovered to heavily favor Gore.
If they were counted – as they almost surely would have been under Lewis’s instructions – Gore would have carried Florida regardless of what standard was applied to the “chads,” the tiny pieces of paper that were not completely dislodged from the punch-through ballots that were then kicked out by the counting machines.
After the Lewis memo surfaced almost a year later, the Orlando Sentinel of Florida was virtually alone in asking the judge what he would have done with the over-votes if the Florida recount had been permitted to go forward. Lewis said that while he had not fully made up his mind about counting the over-votes in December 2000, he added: “I’d be open to that.”
A Judicial Coup
But only hours after Lewis issued his instructions for counties to collect the over-votes, five Republicans on the U.S. Supreme Court did something unprecedented. The narrow court majority ordered a halt in the counting of ballots cast by citizens for the election of the President of the United States.
It was a heart-stopping moment in the history of a democratic Republic. It carried the unmistakable odor of a new order imposing itself in defiance of the popular will. There were no tanks in the streets, but the court’s ruling was as raw an imposition of political power as the United States had seen in modern times.
In the 5-4 decision, the highest court in the land told vote-counters across Florida to stop the recount out of fear that it would show that Gore got more votes in Florida than Bush did.
Such an outcome would “cast a cloud” over the “legitimacy” of an eventual Bush presidency if the U.S. Supreme Court later decided to throw out the Gore gains as illegal, explained Justice Antonin Scalia in an opinion speaking for the majority, which included Chief Justice William Rehnquist and Justices Anthony Kennedy, Sandra Day O’Connor and Clarence Thomas.
“Count first, and rule upon the legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires,” wrote Scalia, an appointee of President Ronald Reagan.
In other words, it was better for the U.S. public not to know for sure that Gore got the most votes if – as expected – the Supreme Court later decided simply to award the presidency to Bush.
In a sharply worded dissent, Justice John Paul Stevens took Scalia’s reasoning to task. Stevens, a moderate who was appointed by Republican President Gerald Ford, complained that the high court’s action overrode the judgment of a state supreme court, took sides on a constitutional question before that issue was argued to the justices, and misinterpreted the principles of “irreparable harm.”
“Counting every legally cast vote cannot constitute irreparable harm,” Stevens argued. “On the other hand, there is a danger that a stay may cause irreparable harm to the respondents [the Gore side] and, more importantly, the public at large” because the stay could prevent a full tally of the votes before the impending deadline of Dec. 12 to report election outcomes.
Immediately after the U.S. Supreme Court’s unprecedented injunction, I wrote at Consortiumnews.com that if the high court insisted “on stopping the vote count and handing the presidency to George W. Bush, the United States will have embarked upon a dangerous political journey whose end could affect the future of all mankind.
“For American political institutions to ignore the will of the voters – and to wrap partisanship in the judicial robes of the nation’s highest court – will almost certainly be followed by greater erosion of political freedom in the United States and eventually elsewhere. …
“Perhaps most chilling, at least for the moment, is the now-unavoidable recognition that the U.S. Supreme Court, the country’s final arbiter of justice, has transformed itself into the right wing’s ultimate political weapon. A dark cloud is descending over the nation.”
However, what was possibly most striking about that weekend was that most of the mainstream press (and much of the activist Left, which had favored Ralph Nader for president in 2000) accepted the high court’s partisan edict with very little outrage.
The Right clearly wanted Bush in the White House by whatever means necessary; the Establishment didn’t want the treasured “comity” of Washington shaken nor its key institutions like the Supreme Court questioned; and parts of the activist Left didn’t care about the electoral outcome because Nader had pushed the line that “there isn’t a dime’s worth of difference” between Gore and Bush.
The Final Ruling
As Bush presented his dubious arguments to the U.S. Supreme Court on Dec. 11, Consortiumnews.com’s political reporter Mollie Dickenson reported that the die had already been cast. She wrote: “One of the court’s supposed ‘swing votes,’ Justice Sandra Day O’Connor, is firmly on board for George W. Bush’s victory.
“According to a knowledgeable source, O’Connor was visibly upset – indeed furious – when the networks called Florida for Vice President Al Gore on Election Night. ‘This is terrible,’ she said, giving the impression that she desperately wanted Bush to win.”
But one optimist who thought that O’Connor would transcend partisanship and demand a ruling respectful of democratic principles was Al Gore.
Dickenson reported that as late as 4 p.m. on Dec. 12, as O’Connor and the Court’s other four partisan Republicans were putting the finishing touches on their decision, Gore was making thank-you calls, including one to Sarah Brady, the gun-control advocate whose husband James Brady had been wounded in the 1981 assassination attempt against President Reagan.
“We’re going to win this thing, Sarah,” Gore said. “I just have all the faith in the world that Sandra Day O’Connor is going to be with us on this one.”
Yet, as the clock ticked toward a midnight deadline for Florida to complete any recount, O’Connor was working with Justice Kennedy to fashion a ruling that would sound principled but still would prevent a recount and thus guarantee both George W. Bush’s inauguration and Republican control over the appointment of future federal judges.
Yet, behind the closed doors of the court chambers, O’Connor and the other four pro-Bush justices were having a harder time than expected coming up with even a marginally plausible legal case. Indeed, outside public view, the five justices tentatively decided on one set of arguments on Dec. 11 but then reversed their thinking nearly 180 degrees heading into the evening of Dec. 12.
USA Today disclosed the inside story in a later article that focused on the stress that the Bush v. Gore ruling had caused within the court. While sympathetic to the pro-Bush majority, the article by reporter Joan Biskupic explained the court’s flip-flop in legal reasoning.
The five justices had been planning to rule for Bush after oral arguments on Dec. 11. The court even sent out for Chinese food for the clerks, so the work could be completed that night, but events took a different turn.
The Dec. 11 legal rationale for stopping the recount was to have been that the Florida Supreme Court had made “new law” when it referenced the state constitution in an initial recount decision – rather than simply interpreting state statutes. Even though this pro-Bush argument was highly technical, the rationale at least conformed with conservative principles, supposedly hostile to “judicial activism.”
But the Florida Supreme Court threw a wrench into the plan. On the evening of Dec. 11, the state court submitted a revised ruling that deleted the passing reference to the state constitution. The revised ruling based its reasoning entirely on state statutes that permitted recounts in close elections.
The revision drew little attention from the national press, but it created a crisis within the U.S. Supreme Court’s majority. Justices O’Connor and Kennedy no longer felt they could agree with the “new law” rationale for striking down the recount, though Rehnquist, Scalia and Thomas still were prepared to use that argument despite the altered reasoning from the state court.
Searching for a new rationale, O’Connor and Kennedy veered off in a different direction. Through the day of Dec. 12, the pair worked on an opinion arguing that the Florida Supreme Court had failed to set consistent standards for the recount and that the disparate county-by-county standards constituted a violation of the “equal protection” rules of the 14th Amendment.
But this argument was so thin and tendentious that Kennedy reportedly had trouble committing it to writing – with good reason. To anyone who had followed the Florida election, it was clear varied standards already had been applied throughout the state.
Wealthier precincts had benefited from optical voting machines that were simple to use and eliminated nearly all errors, while poorer precincts – where many African-Americans and retired Jews lived – were stuck with outmoded punch-card systems with far higher error rates. Some Republican counties also had conducted manual recounts on their own and those totals were part of the tallies giving Bush a tiny lead.
The suspended statewide recount, even if there were slight variations of standards regarding “intent of the voters,” was designed to reduce these disparities and thus bring the results closer to equality. Applying the “equal protection” provision, as planned by O’Connor and Kennedy, turned the 14th Amendment on its head, guaranteeing less equality than would occur if the recount went forward.
Plus, the losers in this perverse application of the 14th Amendment would include African-Americans whose legal rights the amendment had been created to protect.
Yet possibly even more startling than the stretched logic of O’Connor-Kennedy was the readiness of Rehnquist, Scalia and Thomas to sign on to the revamped opinion that was almost completely at odds with their own legal rationale for blocking the recount in the first place.
On the night of Dec. 11, that trio was ready to bar the recount because the Florida Supreme Court had created “new law.” A day later, they agreed to bar the recount because the Florida Supreme Court had not created “new law,” the establishment of precise statewide recount standards.
Never before in American history had U.S. Supreme Court justices exploited their extraordinary powers as brazenly to advance such clearly partisan interests as did these five justices.
The Bush v. Gore decision was finally released at 10 p.m., Dec. 12, just two hours before the deadline for completing the recount. Though the court could have extended the deadline to give Florida an opportunity to conduct a full and fair recount under the 14th Amendment rationale, the five pro-Bush justices wouldn’t do that.
After having delayed any remedy up to the deadline, the five justices demanded that any revised plan and recount be finished in 120 minutes, a patently impossible task. The clear message was that the pro-Bush Five had started out with their desired outcome – putting Bush in the White House – and had simply dressed up their partisanship with fancy legal words.
In a dissenting opinion, Justice Stevens politely reached that obvious conclusion, writing that the majority’s action in blocking the Florida recount “can only lend credence to the most cynical appraisal of the work of judges throughout the land.”
Justices Stephen Breyer and Ruth Bader Ginsburg, appointees of President Bill Clinton, said in another dissent, “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.”
Tacitly recognizing the nonsensical nature of its own ruling, the majority justices barred the Bush v. Gore decision from ever being cited as a precedent in any other case. It was a one-time deal to put Bush in the White House.
The next day, Al Gore – whose final national plurality by then had grown to about 540,000 votes, more than the winning margins for John F. Kennedy in 1960 or Richard Nixon in 1968 – conceded Election 2000 to George W. Bush.
After Gore’s concession, Justice Thomas told a group of high school students that partisan considerations played “zero” part in the court’s decisions. Later, asked whether Thomas’s assessment was accurate, Rehnquist answered, “Absolutely.”
In other words, the Republican justices were behaving like the most dishonest and cynical of politicians, taking an action for a clearly self-interested reason and then lying to the public about the motivation.
It was like a line from the latest episode of “Game of Thrones,” in which one courtier asserts that “knowledge is power” only to have the villainous mother of the king tell her guards to restrain the courtier at knife point. She then instructs the terrified man that “power is power.”
In December 2000, what was at stake was not only the enormous powers of the presidency but one specific power in particular, the ability to appoint federal judges and justices. If Gore had been allowed to become president, that would have meant at least 12 consecutive years of Democratic control of the judicial appointment power, thus threatening Republican domination of the Supreme Court and the lower courts.
For one, Sandra Day O’Connor was eager to retire so she could tend to her ailing husband, but she didn’t want to give a Democratic president the opportunity to replace her. Other GOP-appointed justices also were getting on in years.
However, with Bush in the White House, any Supreme Court vacancies would be filled by Republican jurists and the lower courts could get a fresh infusion of Republican judges. For instance, John Roberts was then just a lawyer in private practice, but Bush named him to the U.S. Court of Appeals in 2003.
So, in 2005 when Rehnquist’s death opened up the position of Chief Justice, Bush could easily nominate Roberts to head the Supreme Court. When O’Connor finally stepped down in 2006, her seat was filled by right-wing Republican Judge Samuel Alito.
Today, with the judicial appointment power back in play in Election 2012, the reconstituted Republican partisan majority – with Roberts and Alito replacing Rehnquist and O’Connor – is tempted to deliver a powerful body blow to the reelection hopes of President Obama by striking down his signature legislative accomplishment as “unconstitutional.”
From their hostile questioning – and silly hypothetical challenges comparing a health insurance mandate to mandatory broccoli purchases – it appeared that the GOP Five are inclined to strike down nearly the entire Affordable Care Act, though it is difficult to divine precisely where justices will come down based on their tone in oral arguments.
But many observers of the court believe the GOP Five are now trying to write a ruling for killing Obama’s health-care reform – despite the fact that the clear language of the Constitution gives Congress an unlimited power to regulate interstate commerce, the authority upon which the law rests.
Even conservative jurists, such as U.S. Appeals Court Judge Laurence Silberman and Reagan’s Solicitor General Charles Fried, found no textual basis in the Constitution for striking down the law. However, that apparently is having little influence on the GOP Five. [See Consortiumnews.com’s “If the Supreme Court Goes Rogue.”]
Though the five justices all claim to be “strict constructionists” – bound by a literal reading of the Constitution – some, if not all, the GOP Five appear determined to rewrite the nation’s founding document to impose some “limiting principle” on the Commerce Clause.
They don’t seem to mind that the Framers chose not to insert one (trusting in the wisdom of the Legislative and Executive branches to act responsibly when enacting laws as needed to promote American commerce and the nation’s general welfare).
The GOP Five’s ludicrous arguments comparing the health-insurance market with the markets for broccoli, gym memberships and burial insurance were less about constitutional reasoning than scoring partisan points. [See Consortiumnews.com’s “When Is a Hack a Hack?”]
For the tens of millions of Americans without health insurance, many want to buy it but have been rejected because of preexisting conditions or other indicators that suggest they might actually need health care. These Americans get turned down because for-profit insurance companies want to cherry-pick their clients to minimize payouts.
Nothing similar exists for the other markets cited by the GOP Five. People are free to buy broccoli, gym memberships and burial insurance without the sellers denying them the right to make the purchase – or making it prohibitive by drastically ratcheting up the price – based on whether a person has previously received a prescription from a doctor or might be overweight.
But the GOP Five – like the earlier Republican subset in December 2000 – are not making serious constitutional arguments. They are seeking excuses to justify a predetermined, partisan decision to overturn Obama’s top legislative accomplishment.
In another parallel to December 2000, the mainstream news media is falling over itself to protect the “legitimacy” of the Supreme Court. The Washington Post has published two lead editorials denouncing “liberals” who would question the integrity of the GOP Five if they strike down the health-reform law.
And, much as some on Left sat out the Bush v. Gore fight because Ralph Nader had declared that there was no meaningful difference between the two candidates, some activists on the Left now are rooting for the GOP Five to strike down the Affordable Care Act as unconstitutional because they believe Congress will then pass a single-payer system.
This belief is as much magic thinking about what Congress will do as Nader’s insistence was wrongheaded that Bush and Gore were essentially the same. Today, even many Nader voters agree that Bush undertook actions, including the bloody invasion of Iraq and opposition to climate-change initiatives, that Gore wouldn’t have done.
But some of these same folks are now embracing a similarly fanciful notion that the Supreme Court’s rejection of “Obamacare” would lead to a prompt enactment of “Medicare for all,” though the last Congress wouldn’t even include Obama’s proposal for a “public option.”
So, from both the mainstream media and parts of the Left – for different reasons – there is little alarm over what it means to have a partisan majority of the U.S. Supreme Court treating the Constitution like a malleable weapon to use against political enemies.
Much like December 2000, this is a moment of crisis for the American Republic with the court’s GOP Five threatening key principles of democracy.
In Bush v. Gore, the principle was the need to respect the will of the voters. With the Affordable Care Act, it is whether a partisan majority of the Supreme Court can simply invent constitutional arguments to reverse a duly enacted law passed by the elected branches of government.
As with the dialogue in “Game of Thrones,” the question is whether the United States will be a nation under “the rule of law” or a system where five men in black robes can simply assert that “power is power.”
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & ‘Project Truth’ are also available there.