It's not as if the Supreme Court comes before us with clean hands. In the course
of its 200-plus years, it has at various times ruled that no runaway slave could
ever be free so long as his master wanted him back; that black children had
no right to attend school with white children; that state prohibitions on 6-year-olds
working in sweatshops were unconstitutional. The list of the court's low points
is a litany of our worst biases invested with the power of law.
Until last week, however, no one could say that the court ignored and distorted
the law solely to benefit one political party and its candidate. But that was
before the decision to stop counting the votes in Florida lest it do George
W. Bush "irreparable harm." That was before the decision--breathtaking for its
intellectual dishonesty--bestowing the presidency on W.
Consider, for instance, the shifting grounds on which the court first stayed
and then invalidated the recount the Florida Supreme Court ordered. In issuing
the stay, Antonin Scalia offered three reasons for stopping the count.
First, he questioned the legality of the count as such, on the theory that
the Florida Supremes were illegally altering the Legislature's statutory handiwork.
Second, he said, the varying standards for recounting were improper, perhaps
unconstitutional.
Third, the act of recounting could "produce a degradation of the ballots...[that
could] prevent an accurate recount from being conducted on a proper basis later."
Look at the court's Tuesday-night decision, however, and you'll have a hard
time recognizing the rationales offered three days earlier. The argument that
the court overstepped its bounds and was making new law is not part of the majority
opinion; it is relegated to a concurring opinion signed only by the court's
three hard-right members, Scalia, Clarence Thomas and Chief Justice William
Rehnquist.
Reason No. 2, the disparity in the vote counts, has been elevated to the main
reason for overturning Tallahassee, since it amounts to a violation of the 14th
Amendment's equal-protection clause. From excoriating the Florida Supremes for
usurping too much power from the Legislature, the indictment against them abruptly
becomes their failure to do more to clarify the Legislature's muddled vote standards.
"The formulation of uniform rules to determine intent based
on these recurring circumstances
is practicable and, we conclude,
necessary," Rehnquist writes.
But, concludes Rehnquist and his band, it can't be done in time. The counting
must be completed by Dec. 12, he claims, a date set not by him but by the judgment
of Florida Supremes--to which he has in no other way given any heed.
Just how grotesque the ruling is becomes clearer if we recall Scalia's third
justification for the stay: It would preserve the ballots in better shape for
a proper count. In Tuesday's ruling, however, Scalia was one of the justices
who rejected such a count because there wasn't time for it. From the intellectual
leader of American judicial conservatism, one expects duplicity of a higher
order than this.
There are higher kinds of duplicity in last Tuesday's majority decision. The
Rehnquist-Scalia gang, for instance, has penned a succession of 5-4 decisions
over the past half-decade, asserting the rights of states over the federal government.
Confronted with a state court following state recount law, however, they suddenly
find merit in federal preemption. "Were the other members of this Court as mindful
as they generally are of our system of dual [that is, federal-and-state] sovereignty,"
Justice Ruth Bader Ginsburg wrote in dissent, "they would affirm the judgment
of the Florida Supreme Court."
The other about-face that Rehnquist and company made is their sudden embrace
of the equal-protection clause. Until last Tuesday, they refused to invoke that
clause as a reason, say, why gays should have a right to serve in the Boy Scouts
or the Army. But the threat that variances in vote counting posed to W.'s lead
was an affront, as Rehnquist movingly noted, to "the equal weight accorded to
each vote and the equal dignity owed to each voter."
Rehnquist is something of an authority on the equal dignity owed to voters,
since few living Americans have done more to assault it. During the 1986 Senate
hearings on his nomination as chief justice, a number of witnesses testified
that Rehnquist had harassed black and Latino voters at Arizona polling places
from 1958 through 1962, demanding to know if they were "qualified to vote."
Rehnquist acknowledged that he headed a Republican program that briefed the
"challengers," but disputed five eyewitnesses who insisted they'd seen him doing
the challenging himself.
It's gratifying to see that Rehnquist has mellowed. Forty years ago, he tried
to keep minorities from voting. Now, he merely keeps their votes from being
counted.
What comes through as you read the opinions of the four dissenting justices
is how stunned, how shaken, they are by the duplicity of their colleagues. Each
writes in a tone of furious, wounded disbelief, and none more so than 80-year-old
John Paul Stevens, appointed to the court in 1975 by Gerald Ford: "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,"
Stevens concludes. "It is the Nation's confidence in the judge as an impartial
guardian of the rule of law."
