It's Been a Year
December 13, 2001
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 legislature.

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 better.