http://www.thenation.com/docPrint.mhtml?i=20010205&s=bugliosi
None Dare Call It Treason
In the December 12 ruling by the US Supreme Court handing the election to
George Bush, the Court committed the unpardonable sin of being a knowing
surrogate for the Republican Party instead of being an impartial arbiter of
the law. If you doubt this, try to imagine Al Gore's and George Bush's roles
being reversed and ask yourself if you can conceive of Justice Antonin Scalia
and his four conservative brethren issuing an emergency order on December 9
stopping the counting of ballots (at a time when Gore's lead had shrunk to
154 votes) on the grounds that if it continued, Gore could suffer
"irreparable harm," and then subsequently, on December 12, bequeathing the
election to Gore on equal protection grounds. If you can, then I suppose you
can also imagine seeing a man jumping away from his own shadow, Frenchmen no
longer drinking wine.
From the beginning, Bush desperately sought, as it were, to prevent the
opening of the door, the looking into the box--unmistakable signs that he
feared the truth. In a nation that prides itself on openness, instead of the
Supreme Court doing everything within its power to find a legal way to open
the door and box, they did the precise opposite in grasping, stretching and
searching mightily for a way, any way at all, to aid their choice for
President, Bush, in the suppression of the truth, finally settling, in their
judicial coup d'�tat, on the untenable argument that there was a violation of
the Fourteenth Amendment's equal protection clause--the Court asserting that
because of the various standards of determining the voter's intent in the
Florida counties, voters were treated unequally, since a vote disqualified in
one county (the so-called undervotes, which the voting machines did not pick
up) may have been counted in another county, and vice versa. Accordingly, the
Court reversed the Florida Supreme Court's order that the undervotes be
counted, effectively delivering the presidency to Bush.
Now, in the equal protection cases I've seen, the aggrieved party, the one
who is being harmed and discriminated against, almost invariably brings the
action. But no Florida voter I'm aware of brought any action under the equal
protection clause claiming he was disfranchised because of the different
standards being employed. What happened here is that Bush leaped in and tried
to profit from a hypothetical wrong inflicted on someone else. Even assuming
Bush had this right, the very core of his petition to the Court was that he
himself would be harmed by these different standards. But would he have? If
we're to be governed by common sense, the answer is no. The reason is that
just as with flipping a coin you end up in rather short order with as many
heads as tails, there would be a "wash" here for both sides, i.e., there
would be just as many Bush as Gore votes that would be counted in one county
yet disqualified in the next. (Even if we were to assume, for the sake of
argument, that the wash wouldn't end up exactly, 100 percent even, we'd still
be dealing with the rule of de minimis non curat lex--the law does not
concern itself with trifling matters.) So what harm to Bush was the Court so
passionately trying to prevent by its ruling other than the real one: that he
would be harmed by the truth as elicited from a full counting of the
undervotes?
And if the Court's five-member majority was concerned not about Bush but the
voters themselves, as they fervently claimed to be, then under what
conceivable theory would they, in effect, tell these voters, "We're so
concerned that some of you undervoters may lose your vote under the different
Florida county standards that we're going to solve the problem by making sure
that none of you undervoters have your votes counted"? Isn't this exactly
what the Court did?
Gore's lawyer, David Boies, never argued either of the above points to the
Court. Also, since Boies already knew (from language in the December 9
emergency order of the Court) that Justice Scalia, the Court's right-wing
ideologue; his Pavlovian puppet, Clarence Thomas, who doesn't even try to
create the impression that he's thinking; and three other conservatives on
the Court (William Rehnquist, Sandra Day O'Connor and Anthony Kennedy)
intended to deodorize their foul intent by hanging their hat on the anemic
equal protection argument, wouldn't you think that he and his people would
have come up with at least three or four strong arguments to expose it for
what it was--a legal gimmick that the brazen, shameless majority intended to
invoke to perpetrate a judicial hijacking in broad daylight? And made sure
that he got into the record of his oral argument all of these points? Yet,
remarkably, Boies only managed to make one good equal protection argument,
and that one near the very end of his presentation, and then only because
Justice Rehnquist (not at Boies's request, I might add) granted him an extra
two minutes. If Rehnquist hadn't given him the additional two minutes, Boies
would have sat down without getting even one good equal protection argument
into the record.
This was Boies's belated argument: "Any differences as to how this standard
[to determine voter intent] is interpreted have a lot less significance in
terms of what votes are counted or not counted than simply the differences in
machines that exist throughout the counties of Florida." A more powerful way
to make Boies's argument would have been to point out to the Court the
reductio ad absurdum of the equal protection argument. If none of the
undervotes were counted because of the various standards to count them, then
to be completely consistent the Court would have had no choice but to
invalidate the entire Florida election, since there is no question that votes
lost in some counties because of the method of voting would have been
recorded in others utilizing a different method.1 [Footnotes on page 7] How
would the conservative majority have gotten around that argument without
buckling on the counting of the undervotes? Of course, advice after a mistake
is like medicine after death. And as we shall see, no matter what Boies
argued, the five conservative Justices had already made up their minds. But
it would have been delightful to see how these Justices, forced to stare into
the noonday sun, would have attempted to avoid a confrontation with the
truth.
The Court majority, after knowingly transforming the votes of 50 million
Americans into nothing and throwing out all of the Florida undervotes (around
60,000), actually wrote that their ruling was intended to preserve "the
fundamental right" to vote. This elevates audacity to symphonic and operatic
levels. The Court went on to say, after stealing the election from the
American people, "None are more conscious of the vital limits on its judicial
authority than are the members of this Court, and none stand more in
admiration of the Constitution's design to leave the selection of the
President to the people." Can you imagine that? As they say, "It's enough to
drive you to drink."
What makes the Court's decision even more offensive is that it warmly
embraced, of all the bitter ironies, the equal protection clause, a
constitutional provision tailor-made for blacks that these five conservative
Justices have shown no hospitality to when invoked in lawsuits by black
people, the very segment of the population most likely to be hurt by a Bush
administration. As University of Southern California law professor Erwin
Chemerinsky noted: "The Rehnquist Court almost never uses equal protection
jurisprudence except in striking down affirmative action programs [designed
to help blacks and minorities]. I can't think of a single instance where
Scalia or Thomas has found discrimination against a racial minority, or
women, or the aged, or the disabled, to be unconstitutional."
Varying methods to cast and count votes have been going on in every state of
the union for the past two centuries, and the Supreme Court has been as
silent as a church mouse on the matter, never even hinting that there might
be a right under the equal protection clause that was being violated.
Georgetown University law professor David Cole said, "[The Court] created a
new right out of whole cloth and made sure it ultimately protected only one
person--George Bush." The simple fact is that the five conservative Justices
did not have a judicial leg to stand on in their blatantly partisan decision.
In a feeble, desperate effort to support their decision, the Court cited four
of its previous cases as legal precedent, but not one of them bears even the
slightest resemblance to Bush v. Gore. In one (Gray v. Sanders), the state of
Georgia had a system where the vote of each citizen counted for less and less
as the population of his or her county increased. In another (Moore v. Ogilvie
), the residents of smaller counties in Illinois were able to form a new
party to elect candidates, something residents of larger counties could not
do. Another (Reynolds v. Sims) was an apportionment case, and the fourth (
Harper v. Virginia) involved the payment of a poll tax as a qualification for
voting. If a first-year law student ever cited completely inapplicable
authority like this, any thoughtful professor would encourage him not to
waste two more years trying to become a lawyer. As Yale law professor Akhil
Reed Amar noted, the five conservative Justices "failed to cite a single case
that, on its facts, comes close to supporting its analysis and result."
If the Court majority had been truly concerned about the equal protection of
all voters, the real equal protection violation, of course, took place when
they cut off the counting of the undervotes. As indicated, that very act
denied the 50 million Americans who voted for Gore the right to have their
votes count at all. It misses the point to argue that the five Justices stole
the election only if it turns out that Gore overcame Bush's lead in the
undervote recount. We're talking about the moral and ethical culpability of
these Justices, and when you do that, the bell was rung at the moment they
engaged in their conduct. What happened thereafter cannot unring the bell and
is therefore irrelevant. To judge these Justices by the final result rather
than by their intentions at the time of their conduct would be like
exonerating one who shoots to kill if the bullet misses the victim. With that
type of extravagant reasoning, if the bullet goes on and accidentally strikes
down a third party who is about to kill another, perhaps the gunman should
ultimately be viewed as a hero.
Other than the unprecedented and outrageous nature of what the Court did,
nothing surprises me more than how it is being viewed by the legal scholars
and pundits who have criticized the opinion. As far as I can determine, most
have correctly assailed the Court for issuing a ruling that was clearly
political. As the December 25 Time capsulized it, "A sizable number of
critics, from law professors to some of the Court's own members, have
attacked the ruling as...politically motivated." A sampling from a few law
professors: Vanderbilt professor Suzanna Sherry said, "There is really very
little way to reconcile this opinion other than that they wanted Bush to
win." Yale's Amar lamented that "for Supreme Court watchers this case will be
like BC and AD. For many of my colleagues, this was like the day President
Kennedy was assassinated. Many of us [had] thought that courts do not act in
an openly political fashion." Harvard law professor Randall Kennedy called
the decision "outrageous."2
The only problem I have with these critics is that they have merely lost
respect for and confidence in the Court. "I have less respect for the Court
than before," Amar wrote. The New York Times said the ruling appeared "openly
political" and that it "eroded public confidence in the Court." Indeed, the
always accommodating and obsequious (in all matters pertaining to the High
Court, in front of which he regularly appears) Harvard law professor Laurence
Tribe, who was Gore's chief appellate lawyer, went even further in the
weakness of his disenchantment with the Court. "Even if we disagree" with the
Court's ruling, he said, Americans should "rally around the decision."
Sometimes the body politic is lulled into thinking along unreasoned lines.
The "conventional wisdom" emerging immediately after the Court's ruling
seemed to be that the Court, by its political ruling, had only lost a lot of
credibility and altitude in the minds of many people. But these critics of
the ruling, even those who flat-out say the Court "stole" the election,
apparently have not stopped to realize the inappropriateness of their tepid
position vis-�-vis what the Court did. You mean you can steal a presidential
election and your only retribution is that some people don't have as much
respect for you, as much confidence in you? That's all? If, indeed, the
Court, as the critics say, made a politically motivated ruling (which it
unquestionably did), this is tantamount to saying, and can only mean, that
the Court did not base its ruling on the law. And if this is so (which again,
it unquestionably is), this means that these five Justices deliberately and
knowingly decided to nullify the votes of the 50 million Americans who voted
for Al Gore and to steal the election for Bush. Of course, nothing could
possibly be more serious in its enormous ramifications. The stark reality,
and I say this with every fiber of my being, is that the institution
Americans trust the most to protect its freedoms and principles committed one
of the biggest and most serious crimes this nation has ever seen--pure and
simple, the theft of the presidency. And by definition, the perpetrators of
this crime have to be denominated criminals.
Since the notion of five Supreme Court Justices being criminals is so alien
to our sensibilities and previously held beliefs, and since, for the most
part, people see and hear, as Thoreau said, what they expect to see and hear,
most readers will find my characterization of these Justices to be
intellectually incongruous. But make no mistake about it, I think my
background in the criminal law is sufficient to inform you that Scalia,
Thomas et al. are criminals in the very truest sense of the word.
Essentially, there are two types of crimes: malum prohibitum (wrong because
they are prohibited) crimes, more popularly called "civil offenses" or "quasi
crimes," such as selling liquor after a specified time of day, hunting during
the off-season, gambling, etc.; and malum in se (wrong in themselves) crimes.
The latter, such as robbery, rape, murder and arson, are the only true
crimes. Without exception, they all involve morally reprehensible con
