The U.S. Supreme Court Decides For Bush:
Has The 'Fat Lady' Finally Sung?
The U. S. Supreme Court has decided in favor of George Bush, and Al Gore has dropped
out of the presidential race. But is it really over? Has the fat lady finally sung? Some of the
militant extremists among Gore's supporters have vowed to fight on, and court watchers will
continue to debate the meaning and correctness of the Court's decision in Bush v. Gore.
However, several facts about the Court's decision are clear.
- The heart of the case lies in the ruling by seven Justices that Florida's recounting of
the presidential ballots has violated the U. S. Constitution's Equal Protection Clause
("No state shall....deny to any person within its jurisdiction the equal protection of the
laws"). "The right to vote is protected in . . . the initial allocation [by the state] of
the franchise. [But] Equal protection applies as well to the manner of its exercise.
Having once granted the right to vote on equal terms, the State may not, by later
arbitrary and disparate treatment, value one person's vote over that of another." Such
"arbitrary and disparate treatment" was precisely the Constitutional violation Florida
committed because in its recount there was a "want" of "specific [recount] rules
designed to ensure uniform treatment [of every person's vote]." The strength of
Bush's equal protection claim is evidenced by the fact that the claim was upheld by
two Justices who would typically be expected to vote against Bush (see below).
- The voting pattern of the Justices in granting a hearing to this case and then in
deciding it demonstrates the truth of a key point discussed in our "Court Watch Update" of 11/28/00--that the Court is not divided along partisan lines, but along
philosophical lines. All five conservative/restraintist and "moderate/centrist" Justices
agreed that Florida had indeed violated the Equal Protection Clause. Two of the
liberal/activist Justices (Stevens and Ginsburg) delivered scathing dissents; Stevens is
a Republican appointee, while Ginsburg was Bill Clinton's first addition to the Court.
- The most "surprising" votes were cast by Justices Breyer (Clinton's second Court
appointee) and Souter (appointed by George Bush). Breyer and Souter agreed with
the other five majority Justices that Florida had committed an equal protection
violation. But the two disagreed with the other five majority members concerning
remedies--Breyer and Souter, but not the other five Justices, felt that a recount
remedy was still possible. In voting with the five restraintist and centrist Justices,
Breyer and Souter diverged from a highly consistent pattern evident in the most recent
four terms of the Court. During that period, the Justices with whom both Breyer and
Souter have voted the least often are Scalia, Thomas, and Rehnquist (with whom
Breyer and Souter agreed here on the equal protection issue).
- The most hypocritical behavior in this case was committed by Justice Stevens, the
oldest High Priest of judicial activism on the Court. In his stinging denial of any
Constitutional wrongdoing by Florida, Stevens piously worried that the majority's
vote "can only lend credence to the most cynical appraisal of the work of judges
throughout the land." Yet Stevens' quarter century of radical liberal/activist
decision-making has done more to judicially bludgeon state power and "lend credence
to the most cynical appraisal" of America's courts than all the decisions rendered by
the five conservative/restraintist and centrist Justices whom he was attacking.
- The worst loser on the Court was Ruth Bader Ginsburg. Maintaining a spirit of
courteous collegiality within the Court, even in its most bitterly divided opinions, is a
deeply established expectation of Supreme Court Justices. One protocol rooted in
that expectation is the practice of dissenting Justices to conclude their dissenting
opinions with the phrase, "I respectfully dissent" (emphasis added). This protocol
was followed in three of the four dissenting opinions written in this case (including
Stevens' very strongly worded opinion). But Justice Ginsburg concluded by saying
only "I dissent." This violation of protocol bespeaks a lack of professional courtesy
and personal graciousness on the part of Ginsburg that extends beyond what the mere
wording might suggest to most readers and clearly earns for this radical activist/liberal
Justice the dubious distinction of being the Court's "worst loser."
The U. S. Supremes' decision in Bush v. Gore will surely generate innumerable questions and unending analyses in the years ahead. But no question is more critical than this:
has the fat lady finally sung in Bush v. Gore? Is this truly the end of the worst election debacle in
America's history? Only time will tell us the answer to this question.