Been a Year
by Dave Conroy
It has been a year since Bush vs. Gore. It has been a year
since the Supreme Court sold us out. It has been a year since
we could trust the Court.
First, let me admit that although I am firmly convinced that
Al Gore won both the popular vote and the vote in Florida
I know that Congress would have seated George Bush. The legislature
in Florida would have given the electoral votes of Florida
to Bush and the Congress would have ratified the decision.
So why am I so upset? Because the Court broke the rules.
Our system is based on precedent. In lay terms that means
the rules stay the same no matter whose ox is gored. That
is the way it has to work. We must have faith that Smith vs
Jones will be decided under the same rules as Jones vs Smith.
If not then the law is simply what five people say it is.
In Bush vs Gore the court said that the decision we are handing
down applies only to this case. Imagine if the court decided
Brown vs. Board that way. Or Roe vs Wade. We can't because
that is not how it works. From now until the end of these
people's terms we will wonder what unique set of facts they
will come up with next. One reason that we accepted the verdict
in Clinton vs. Jones is that we know the decision will apply
to Bush and any other successer.
There is an old legal saying that bad facts make bad law.
For this Court it may have been a bad fact for the people's
verdict in Florida to be truly delivered. So they decided
to make what they knew was bad law. It is for this precise
reason we have precident. The founders realized that having
the Supreme Court make personalized laws would crate a super
As awful a President as George Bush is, and he is worse than
I feared he would be, our country could survive him. As bad
as it is to have the wrong man in the White House, and Gore
won by more votes in Florida than I thought he had, we could
survive that. What we can not survive is this Court.
One of Blackman's most famous dissents came not long before
he retired. He complained about tinkering with the machinery
of death. The decision he was so upset with was one that reversed
a precedent of just a few years before. The court had decided
in the first case that in death penalty cases there would
be no victim impact statements. In the case Blackman was so
upset with they reversed themselves. What had changed? One
Justice retired. That is not how the law is supposed to work.
What happened on Dec. 12, 2000 was that this Court decided
we were a country of men and not of laws. They decided the
law was what they said it was, when they said it was. That
is taking for themselves the divine right of kings not the
secular right of a Supreme Court. Once a case is decided for
a set of facts it is supposed to remain decided for that set
of facts. It isn't supposed to change because the litigants
or the judge changes. The power this court has is rare in
a democracy. That is why there are limits on it.
The Court trashed the limits and it trashed itself. Al Gore
deserved better. We deserved better. History deserved better.
And in a final irony, somewhere in the future a liberal court
may use this opinion as a model to work its will on a case
by case basis. Conservatives may find out they too deserved