Bandits in Black Robes

Article excerpt

Why you should still be angry about Bush v. Gore.

QUITE DEMONSTRABLY THE WORST Supreme Court decision in history, Bush v. Gore changes everything in American law and politics. The Rehnquist Court has destroyed any moral prestige still lingering from the Warren Court's brief but passionate commitment to civil rights in the middle of the last century. Now the court has returned to its historic conservative role, rushing to aid the political party of property and race privilege in a debased partisan way, torturing out of the Equal Protection Clause new rules to assure the power of one political faction. Bush v. Gore was no momentary lapse of judgment by five conservative justices, but the logical culmination of their long drive to define an extra-constitutional natural law enshrining the rights of white electoral majorities, like the one that brought George W Bush the White House.

People do not want to believe that Bush v. Gore is actually the worst Supreme Court decision in our history because we want that title to belong for all time to the infamous Dred Scott decision (1857), which found that African-Americans could not be "citizens" within the meaning of the diversity jurisdiction clause of the Constitution. But Dred Scott was, by comparison, a brilliantly reasoned and logically coherent decision. It was a masterpiece of originalism, legal analysis based on the Framers' intent. It demonstrated to the satisfaction of anyone then or today that the original Constitution was indeed a white man's compact and that it was never contemplated by the Framers that slaves or the descendants thereof could avail themselves of the federal courts. (It would take the Civil War and Reconstruction to destroy the white supremacist Constitution.) Of course, original intent is not the only theory of constitutional interpretation, much less the controlling one, but at least the Dred Scott decision had a coherent theory rooted in the history and text of the Constitution.

By contrast, Bush v. Gore's Emancipation Proclamation for pregnant chads mocks legal reasoning and represents an affront to the rule of law. It has no grounding in originalism or textualism, the watchwords of the conservatives. It constitutes an assault on federalism and the separation of powers, both of which conservatives pretend to love. And it makes a mockery of the phrase "judicial restraint" In a slapdash job of constitutional interpretation, the conservatives upended and ravaged four foundational relationships in our constitutional system. It 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.

To accomplish these feats, 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. Justice O'Connor stated that citizens have no general right to make government comply with the law and found that the African-American plaintiffs were not personally injured by the white flight allegedly facilitated by the IRS.

But in Bush v. Gore, the Rehnquist majority 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. …