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obvious correlation between the outdated voting machines found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
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
"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.
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
McCloskey, Robert G. The American Supreme
Court, Third Edition. University of Chicago Press: Chicago
"Oral arguments, Bush v Gore." Legal Information
(8 May 2k1).
Van Geel, T.R. Understanding Supreme Court
Decisions. Longman Publishing Group: New York, NY 1991.