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Bush vs. Gore - Some Implications
May 19, 2001

by Johnny Red

An historic event took place on 12 December 2000. The United States Supreme Court voted in a 5-4 decision along partisan lines to support George Bush's claim to the office of the Presidency of the United States. Upon review of the oral arguments, the Constitution, and the findings of the lower courts, a majority consisting of five Justices paid lip service to the Equal Protection clause of the Fourteenth Amendment while using their power as the highest legal body in the United States to forward their political agendas.

This action, though it may forward short sighted political goals, ultimately undermines the authority of the Supreme Court as a dispassionate arbitrator. In U.S. v Nixon (1974), it was established that the basic tenet of the authority of the Supreme Court was the popular belief that one would receive a fair trial at the hands of this judicial body regardless of one's position or political standing. This current Court, by its arbitrary political decision on this matter, casts serious doubt into the minds of the public concerning the impartiality and fairness of this institution.

To be fair, Vice President Al Gore's attorney David Boies did not argue this case well. He allowed the Supreme Court Justices to steer their discussion into the minutia of definitions of "dimpled chads" and "hanging chads" instead of pursuing more profitable lines of discourse such as the obvious correlation between the outdated voting machines found in primarily poor, primarily minority, primarily Democratic districts and the number of uncounted votes in those districts. This argument would introduce a valid Equal protection problem into the discussion, which would steal the wind from the sails of the Court's ruse.

As of the time of this ruling, the Supreme Court had not yet said that discrimination must be proven to be malicious in order for it to be illegal (Alexander v Sandoval 2k1). The discriminatory use of older, unreliable voting methods in Miami is a broad, undeniable violation of the idea of Equal Protection under the law. However, Boies wasted his day in court discussing standards by which a voters intent can be ascertained, and whether a voter should be penalized for improperly filing of his or her ballot even though long standing precedent in Florida law mandates that a vote should be counted if "a voter's intent can be discerned" (Oral arguments, 58, referencing Darby v Florida 1917).

Bush's attorneys, Theodore Olson and Joseph Klock Jr. on the other hand, did a masterful job of reading the political ideology of the majority and playing up to their particular individual judicial predispositions. For example, Olsen directly appealed to the conservative tendencies of the Court by pointing out that this recount was "the first time we've had a recount for anything other than arithmetic tabulation error. This is something that is unprecedented in the State of Florida" (Oral arguments, 22). While this is certainly a factual statement, it has no bearing as to the constitutionality of the contested issue, and is nothing more than an appeal to the conservative ideology of the five Justice majority which eventually ruled in favor of Bush.

Klock took another approach to appealing to the conservative majority by basing many of his discussions around the idea of judicial restraint. He attacks the Florida Supreme Court's decision to conduct manual recounts on the basis that they do not have the authority to interpret election law. "I don't think that? any? court can sit down and write the standards that are going to be applied" (Oral arguments, 30). Klock treads dangerous precedental waters here, in that the Supreme Court, if they accept this argument, would be severely limiting their own power to actively engage in the societal issues of the day.

Another consideration in Bush v Gore is that of timing. The Supreme Court regularly does not accept moot questions, those in which "a legal question has already been resolved, the situation has changed so much that the legal issue no longer exists, or a hypothetical issue" (Baugh et al, 896). However, in its per curiam decision, the Court holds that the recount was unconstitutional and handed the question back to the State of Florida knowing full well that there was no time available to solve the problem (Bush v Gore 2000). Thus, in effect, the Court ruled on a case that had already been decided by the sands of time. By doing this the Court is setting a dangerous precedent. Have they opened the gateway to litigation on other matters that are no longer matters of current importance? Can the Native American tribes still in existence sue for deprivation of "life liberty, and the pursuit of happiness" based on the seizure of their land by our forefathers?

The Court's primary objection to what was happening in Florida is that since certain standards for recounting undervotes varied from county to county, voters situated similarly were not being treated similarly, thus creating a violation of the Equal Protection clause of the Fourteenth Amendment. This creates an unprecedented new right for Americans, the right to a uniform method of voting. If it violates the Equal Protection clause to have non-uniform voting practices in neighboring counties, surely the same logic applies to neighboring states.

"The [historical] record shows that no useful purpose is served when the judges seek all the hottest political cauldrons of the moment and dive into them (McCloskey 234). So the Court in its inspired wisdom decided that it was better to disenfranchise all of the voting public of the United States by diving into the most evenly divided election in recent memory. By invalidating the collective voice of the 50 million Americans who took part in this election, the Supreme Court kicked the legs of legitimacy out from under our government. By perverting the effect of the Fourteenth Amendment from its original noble cause of universal protection to the polar opposite goal of universal disenfranchisement, the Supreme Court has overstepped the human propensity to err and entered into the realm of treason.

This convoluted logic has given America its first judicially appointed Chief Executive. Not only does this destroy whatever vestiges of faith the public has in the democracy they live in, it creates an interesting separation of powers issue. If the judiciary can appoint the President and the President can appoint the judiciary, wouldn't it save a lot of money simply to do away with the entire voting process? And since the President can veto any bill and the judiciary can declare any bill attempting to override a veto unconstitutional, we may as well save another good bit of money by firing the entire legislative branch immediately.

While these scenarios may seem farfetched, they are now realistic worries in our political system. "As long as ours is a representative form of government, the right to elect in a free and unimpaired fashion is a bedrock of our political system" (Warren quoted in Van Geel 82). The delicate balance of powers sought by the framers of the Constitution, which explicitly includes the voice of the people has been thrown dangerously off kilter. The voice of the people as expressed through the vote has been removed. It is for the paranoid fringe elements of society to guess at what conspiracy is in action to subvert our democratic republic, but at this point, seeing what has occurred, there is little that this author would find hard to believe.

Bibliography

Baugh, Joyce A., Thomas R. Hensley, Christopher E. Smith. The Changing Supreme Court. West Publishing Company, Albany NY 1997.

Bloch, Susan and Thomas Krattenmaker. Supreme Court Politics. West Publishing Company: St Paul, Minnesota 1994.

McCloskey, Robert G. The American Supreme Court, Third Edition. University of Chicago Press: Chicago 2000.

"Oral arguments, Bush v Gore." Legal Information Institute. http://supct.law.cornell.edu/supct/ (8 May 2k1).

Van Geel, T.R. Understanding Supreme Court Decisions. Longman Publishing Group: New York, NY 1991.

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