"I dissent."~ Justice Ruth Bader Ginsburg

Sad End to a Sad Saga, by Tom M. (12/13/2000)

I have just finished reading the per curium, concurrent, and dissenting opinions in Bush II. It leaves me sadder than I ever expected to be--and I am one of those who subscribes to the theory that the winner of this election, and his party, will be the long-term loser in 2002 and 2004. The court's opinion, paradoxically, lends assistance to this outcome. I should be cheered as to the Congress and the Whitehouse.

But I am left with a foreboding more serious that that.

The Supreme Court of the United States has conducted itself admirably in the aftermath of its Dred Scott decision, but nothing lasts forever. It has taken politically sensitive cases, and resolved them so that they have been accepted with equanimity--objections an griping of the losing side notwithstanding. This time, the court over-reached, and it saddens me to see that we have persons on the bench who so blatantly place ideology over jurisprudence, and political result over precedent.

The per curium opinion, hinging on "equal protection," is superficially appealing to people innocent of knowledge of past cases in which case justices Scalia, Rehnquist, and Thomas have found to lack merit. The equal protection argument is buttressed in the first instance by reliance on the testimony of a recount "monitor" who testified that different standards were used by difference panels in the same county.

Iirc, this witness was a Republican observer who had been a witness in a previous case, in which there was voter fraud, in which he declined to testify on grounds of the fifth amendment.

[A footnote on equal protection: It is beyond dispute that there arevotes which, under the most conservative standard which would permit the counting of a punch card ballot which the machine did not count, that will not be counted absent a hand recount. The court's opinion, in essence, is that these clearly countable votes should not be counted because yet some other county would count not only these ballots, but others that would not be counted in the first county, and because this county would count as valid votes, ballots which would not have been counted in some third county. But that is not a denial of equal protection that is of concern to the plurality.}

There is no record here of any substance. The court has never entertained a vote count case before in its history. I doubt that any of these justices has ever had to run for election. Yet, on such a scant record, and on such a short schedule, they have selected the Pres. of the US. I guess the concept of ripeness is, for the time being, a dead letter.

The ultimate indicia of the intellectual dishonesty of this opinion is its statement near the end that "Seven Justices of the Court agree there are constitutional problems with the recount ordered by the Florida Supreme Court, ... [t]he only disagreement is as to the remedy." [citing the dissents of Souter and Breyer.] This is a blatant attempt to transmogrify a 5-4 plurality opinion into a 7-2 consensus. What did Souter and Breyer actually say?

Souter: "The Court should not have reviewed either [Bush I] or this case, and should not have stopped Florida's attempt to count all undervote ballots."

Breyer: "The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the present recount should resume."

Yeah, Souter and Breyer are only quibbling about the remedy.

Discouraged. Not even cheered by the irony of states' rights boosters Scalia, Rehnquist and Thomas being at the forefront of this. However, I'll be cheered by the fact that even if DL's radio show fails, I'll have a treasure trove of hypocrisy to mock in the years to come.

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