In honor of Election Day, I decided to write each Justice of the Supreme Court. I wanted to invite them to cast their own personal vote, right along with the rest of Americans, at their polling place, but to leave the final selection of President to electorate as a whole.
With slight modifications for each Justice (some did discent from the 2000 Bush v. Gore decision), the following letter was sent to each Justice.
November 2, 2004
Chief Justice William H. Rehnquist
Supreme Court of the United States
Washington, DC 20543
Dear Chief Justice Rehnquist:
I am certainly not a constitutional scholar (I’m not even an attorney), but I am an American Citizen. I have read the Constitution and studied it some, and I find nowhere that it empowers the judiciary to appoint the President. I implore you to protect our democracy and refrain from judicial involvement in the election process. Thomas Jefferson said, “The elective franchise, if guarded as the ark of our safety, will peaceably dissipate all combinations to subvert a Constitution, dictated by the wisdom, and resting on the will of the people.” While I share Jefferson’s belief in the strength of our democracy, I fear it cannot withstand another debacle such as visited on the electorate by the Supreme Court during the 2000 election.
Judges shouldn’t cast themselves as national saviors in political disputes. These cases are so likely to distort their judgment and inflame their passions that judges on both sides of the political aisle can’t reliably evaluate the consequences of a decision to intervene. By rushing to hand Mr. Bush the 2000 election that he might well have won without the Court’s help, you tarnished his legitimacy far more than any manual recount could have done.
As Alexander Hamilton wrote, “A share in the sovereignty of the state, which is exercised by the citizens at large, in voting at elections is one of the most important rights of the subject, and in a republic ought to stand foremost in the estimation of the law.”
Bush v. Gore’s ruling mocks legal reasoning and represents an affront to the rule of law. It constitutes an assault on federalism and the separation of powers, both of which you pretend to love. And it makes a mockery of the phrase “judicial restraint.” The Court’s ruling in 2000 usurped the role of the Florida Supreme Court in interpreting state law. It usurped the role of the American people by halting the counting of ballots in a presidential election and effectively choosing the president for them. It usurped Congress’ powers to accept or reject the states’ Electoral College votes. And it reversed the proper distribution of powers in federal government by having Supreme Court justices appoint the president rather than vice versa.
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 under-votes be counted, effectively delivering the presidency to Bush.
To accomplish this feat, the court had to trample its own restrictive rules about who can even be heard in federal court. In equal protection cases, certainly those involving racial minorities, the Rehnquist Court has been adamant that plaintiffs seeking a hearing may not assert the rights of others or abstract principles of fairness but must establish standing by showing their own concrete personal injury at the hands of the government. Thus, in Allen v. Wright (1984), the court denied standing to African-American parents who wanted to compel the IRS to enforce the law by withdrawing tax exemptions from private schools that discriminate on the basis of race.
In most equal protection cases 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?
But in Bush v. Gore, you did not even ask, much less explain, how Bush was personally injured by the hypothetical possibility that anonymous third-party citizens might have their ballots counted differently in Florida’s presidential election. Nor, for that matter, did you ask how stopping the vote counting would redress those third-party injuries.
The Court?s ruling overrode not only the glaring standing problem but also the obstacles of federalism and the “political question doctrine.” Article II leaves it to “Each State” to appoint its electors, and the 12th Amendment provides that the “President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” The court should simply have deferred to the states and Congress. That is almost certainly what it would have done if Al Gore had been leading in Florida and had asked the court to stop an order of the Florida Supreme Court for a statewide manual recount of undercounted ballots upon a petition by George W. Bush.
The simple fact is, there were no injured plaintiffs as parties in Bush v. Gore available to complain about being disenfranchised by the court. Rather, the plaintiff was a candidate desperately looking for ways to prevent the counting of votes. The tragedy here is that the court ruling not only ordered actual disenfranchisement as the remedy for potential disenfranchisement but actually used voting rights rhetoric to nullify the right to vote. If there was an equal protection violation in Bush v. Gore, it is found not in anything Florida did, but in the very relief that the court ordered.
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 you all did not have a judicial leg to stand on in their blatantly partisan decision.
Under Florida statutory law, when the Florida Supreme Court finds that a challenge to the certified result of an election is justified, it has the power to “provide any relief appropriate under the circumstances” (? 102.168(8) of the Florida Election Code). On Friday, December 8, the Florida court, so finding, ordered a manual recount (authorized under ? 102.166(4)(c) of the Florida Election Code) of all disputed ballots (around 60,000) throughout the entire state.
My limited understanding of Supreme Court rules is that a stay is supposed to be granted to an applicant (here, Bush) only if he makes a substantial showing that in the absence of a stay, there is a likelihood of “irreparable harm” to him. With the haste of a criminal, Justice Scalia, in trying to justify the Court’s shutting down of the vote counting, wrote, unbelievably, that counting these votes would “threaten irreparable harm to petitioner [Bush]…by casting a cloud upon what he claims to be the legitimacy of his election.” In other words, although the election had not yet been decided, Scalia was presupposing that Bush had won the election–indeed, had a right to win it–and any recount that showed Gore got more votes in Florida than Bush could “cloud” Bush’s presidency. Only a criminal on the run, rushed for time and acting in desperation, could possibly write the embarrassing words of the stay.
The proof that you knew the equal protection argument had no merit whatsoever is that when Bush first asked the Court, on November 22, to consider three objections of his to the earlier, more limited Florida recount then taking place, the Court only denied review on his third objection. Since the Court, on November 22, felt that this objection was so devoid of merit that it was unworthy of even being considered by it, what you subsequently learn about the equal protection clause that you apparently did not know in November that caused you, just three weeks later, on December 12, to embrace and endorse it so enthusiastically?
By the Court?s conduct, you forfeited the right to be respected. That an election for an American President can be stolen by the highest court in the land under the deliberate pretext of an inapplicable constitutional provision has got to be one of the most frightening and dangerous events ever to have occurred in this country.
In failing to remand Bush v. Gore to the Supreme Court of Florida for a new recount consonant with the U.S. Supreme Court majority’s enunciated Equal Protection ruling, this court willfully nullified the rule of law for a partisan political purpose, forcing a premature end to the counting of presidential election votes in the state of Florida on December 12, 2000.
In light of public and demonstrable conflicts of interest arising from the political affiliations and familial ties, by failing to recuse themselves from participation in Bush v. Gore, the justices in the majority violated set and certain ethical guidelines universally adhered to by judges at all levels of jurisdiction which guard against judicial decisions being tainted by bias and partiality, or the appearance of such impropriety.
In holding Bush v. Gore to be justifiable in federal court, abjuring numerous factors compelling its classification as a non-justifiable political question and otherwise dictating prudential abstention, these five justices usurped the powers lawfully belonging to a coordinate branch of the federal government (Congress), and to the state of Florida.?
Please exercise?your personal right to cast you vote at a poll, but, for the sake of on-going democracy, do not discount my vote by invoking some imagined constitutional power to override the elective process.
B. John Masters