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FEATURE STORY
| February 5, 2001
None Dare Call It Treason
by Vincent Bugliosi
he New York Times observed that the Court gave the appearance by the stay of "racing to beat the clock before an unwelcome truth would come out." Terrance Sandalow, former dean of the University of Michigan Law School and a judicial conservative who opposed Roe v. Wade and supported the nomination to the Court of right-wing icon Robert Bork, said that "the balance of harms so unmistakably were on the side of Gore" that the granting of the stay was "incomprehensible," going on to call the stay "an unmistakably partisan decision without any foundation in law."
As Justice John Paul Stevens wrote in opposing the stay, Bush "failed to carry the heavy burden" of showing a likelihood of irreparable harm if the recount continued. In other words, the Court never even had the legal right to grant the stay. "Counting every legally cast vote cannot constitute irreparable harm," Stevens said. "On the other hand, there is a danger that a stay may cause irreparable harm to the respondent [Gore] and, more importantly, the public at large because of the risk that the entry of the stay would be tantamount to a decision on the merits in favor of the applicant. Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election." Stevens added what even the felonious five knew but decided to ignore: that it is a "basic principle inherent in our Constitution that every legal vote should be counted." From the wrongful granting of the stay alone, the handwriting was on the wall. Gore was about as safe as a cow in a Chicago stockyard.
In yet another piece of incriminating circumstantial evidence, Scalia, in granting Bush's application for the stay, wrote that "the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner [Bush] has a substantial probability of success." But Antonin, why would you believe this when neither side had submitted written briefs yet (they were due the following day, Sunday, by 4 pm), nor had there even been oral arguments (set for 11 am on Monday)? It wouldn't be because you had already made up your mind on what you were determined to do, come hell or high water, would it? Antonin, take it from an experienced prosecutor--you're as guilty as sin. In my prosecutorial days, I've had some worthy opponents. You wouldn't be one of them. Your guilt is so obvious that if I thought more of you I'd feel constrained to blush for you.
2. When prosecutors present their circumstantial case against a defendant, they put one speck of evidence upon another until ultimately there is a strong mosaic of guilt. One such small speck is that in its 5-to-4 decision handing the election to Bush, the Court's ruling was set forth in a thirteen-page "per curiam" (Latin for "by the court") opinion (followed by concurring and dissenting opinions). Students of the Supreme Court know that per curiam opinions are almost always issued for unanimous (9-to-0) opinions in relatively unimportant and uncontroversial cases, or where Justices wish to be very brief. But as USA Today pointed out, "Neither was the case here." Again, on the run and in a guilty state of mind, none of the five Justices, even the brazenly shameless Scalia, wanted to sign their name to a majority opinion of the Court reversing the Florida Supreme Court's order to recount the undervotes. A per curiam opinion, which is always unsigned, was the answer. It is not even known who wrote the per curiam opinion, though it is believed to be O'Connor and/or Kennedy, neither of whose names is mentioned anywhere in the Court's sixty-two-page document. After they did their dirty work by casting their two votes on the case for their favorite--two votes that overruled and rendered worthless the votes of 50 million Americans in fifty states--O'Connor and Kennedy wanted to stay away from their decision the way the devil stays away from holy water. Indeed, by their per curiam opinion, it was almost as if the felonious five felt that since their names would not be on the legally sacrilegious opinion, maybe, just maybe, the guilt they knew they bore would be mitigated, at least somewhat, in posterity.
3. The proof that the Court itself knew its equal protection argument had no merit whatsoever is that when Bush first asked the Court, on November 22, to consider three objections of his to the earlier, more limited Florida recount then taking place, the Court only denied review on his third objection--yeah, you guessed it, that the lack of a uniform standard to determine the voter's intent violated the equal protection clause of the Fourteenth Amendment. Since the Court, on November 22, felt that this objection was so devoid of merit that it was unworthy of even being considered by it, what did these learned Justices subsequently learn about the equal protection clause they apparently did not know in November that caused them just three weeks later, on December 12, to embrace and endorse it so enthusiastically? The election was finally on the line on December 12 and they knew they had to come up with something, anything, to save the day for their man.
The bottom line is that nothing is more important in a democracy than the right to vote. Without it there cannot be a democracy. And implicit in the right to vote, obviously, is that the vote be counted. Yet with the election hanging in the balance, the highest court in the land ordered that the valid votes of thousands of Americans not be counted. That decision gave the election to Bush. When Justice Thomas was asked by a skeptical high school student the day after the Court's ruling whether the Court's decision had anything to do with politics, he answered, "Zero." And when a reporter thereafter asked Rehnquist whether he agreed with Thomas, he said, "Absolutely, absolutely." Well, at least we know they can lie as well as they can steal.
4. The Court anchored its knowingly fraudulent decision on the equal protection clause of the Fourteenth Amendment. But wait. Since the electors in the fifty states weren't scheduled to meet and vote until December 18, and the Court's ruling was on December 12, if the Court was really serious about its decision that the various standards in the counties to determine the voter's intent violated the equal protection clause, why not, as Justices Stevens, Souter, Ginsburg and Breyer each noted in separate dissents, simply remand the case back to the Florida Supreme Court with instructions to establish a uniform, statewide standard and continue the recount until December 18? The shameless and shameful felonious five had an answer, which, in a sense, went to the heart of their decision even more than the bogus equal protection argument. The unsigned and anonymously written per curiam opinion noted that under Title 3 of the United States Code, Section 5 (3 USC § 5), any controversy or contest to determine the selection of electors should be resolved "six days prior to the meeting of the Electoral College," that is, December 12, and inasmuch as the Court issued its ruling at 10 pm on December 12, with just two hours remaining in the day, the Court said, "That date [December 12] is upon us," and hence there obviously was no time left to set uniform standards and continue the recount. But there are a multiplicity of problems with the Court's oh-so-convenient escape hatch. Writing in the Wall Street Journal, University of Utah law professor Michael McConnell, a legal conservative, pointed out that the December 12 "deadline" is only a deadline "for receiving 'safe harbor' protection for the state's electors" (i.e., if a state certifies its electors by that date, Congress can't question them), not a federal deadline that must be met. New York University law professor Larry Kramer observed that if a state does not make that deadline, "nothing happens. The counting could continue."
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