Professing the Count
The controversy over the U.S. Supreme Court decisions effectively appointing George W. Bush president won't end any time soon. In weeks to come, half a dozen news agencies (and a small army of partisan pilgrims) intend to plow through the drifting chads to "count" the beleaguered Florida ballots. Alongside the spring training baseball scores, we can all look forward to cumulative vote totals over breakfast.
Meanwhile, the justices' academic colleagues fired a noisy salvo Dec. 14, in a nationwide petition denouncing the court's decision to stop the manual recount. Signed by 280 law professors from across the county (including a baker's dozen from UT), the petition charged: "By stopping the vote count in Florida, the U.S. Supreme Court used its power to act as political partisans, not judges of a court of law." Describing themselves as holding "different political beliefs," the professors said they all agreed that in halting the recount, "the five justices were acting as political proponents for candidate Bush, not as judges."
Among the 13 local signers was UT Law's Sanford Levinson, who hasn't exactly been shy recently about criticizing the court. He had already told The Washington Post last week: "This looks like a group of five hard-line, right-wing Republicans who are willing to do anything to put their guy in office," adding, "they're deluded if they think this is going to make George Bush's presidency any more legitimate than it otherwise might be."
A few days later, Levinson was at first slightly more conciliatory when he told the Chronicle, "All of [the justices] no doubt believe that they were behaving in a principled way." But in making their decision to stop the recount in progress, Levinson said, the justices didn't even bother to explain themselves carefully, or to anticipate harsh public skepticism -- more evidence of what he calls their woeful lack of political experience or "street smarts." After a moment, Levinson dropped the politesse: "The court behaved with astonishing political stupidity last Saturday, and I'm delighted to go on the record with that."
Levinson reiterated his colleagues' charge that the decision to stop the recount was essentially political, especially since Antonin Scalia's opinion claimed that the recount might "cast a cloud upon what [Bush] claims to be the legitimacy of his election." Levinson adds that based on this decision, he expects lawyers will soon be filing cases, and judges writing opinions, questioning "why [equal protection] applies only to making George Bush president, and not, say, to people on death row."
But Ernest Young, Levinson's colleague at UT and a former clerk for Justice David Souter, was skeptical of the petitioners' claims of nonpartisanship. "It seems to me very few legal academics have come out with a legal position that's any different from their political position. I think it'd be a safe bet that 95% of the people that signed that petition voted for Gore ... I have not been surprised by the position taken by anybody, and that's disappointing."
Young pointed out that although five justices concurred in the opinion, seven found constitutional problems with the Florida recount -- because there weren't any common standards for counting disputed ballots -- and that once the court had decided the count wouldn't be constitutional, there was simply no point in proceeding. "What's the harm in stopping the count, if you're not going to use it anyway?" Young asked. He also argued that with the exception of Scalia, Clarence Thomas, and William Rehnquist, the current justices have been willing to extend the equal protection clause in cases affecting gay rights, women's rights, and voting rights.
Young called the subsequent decision -- whether to end the counting altogether, or to remand it to the Florida Supreme Court for a new standard -- the "tougher" one, and said that the court decided that under Florida law, Dec. 12 was indeed a hard deadline. "If that's the disagreement," Young concluded, "then the rhetoric [denouncing the court] is overblown."
Levinson acknowledged that most of the protesting professors probably voted for Gore, but argued that the court's action will only serve to increase partisanship, not diminish it. "It's just one of the dismaying realities," he said, "that political views and legal views tend to line up." A few days later, Levinson published a Washington Post op-ed recommending several constitutional reforms, primarily to election procedures. Among his suggestions: "The Supreme Court's role in the just-ended campaign highlighted the questionable wisdom of lifetime appointments for Supreme Court Justices." Ouch.
We are Professors of Law at American law schools, from every part of our country, of different political beliefs. But we all agree that when a bare majority of the U.S. Supreme Court halted the recount of ballots under Florida law, the five justices were acting as political proponents for candidate Bush, not as judges.
IT IS NOT THE JOB OF A FEDERAL COURT TO STOP VOTES FROM BEING COUNTED.
By stopping the recount in the middle, the five justices acted to suppress the facts. Justice Scalia argued that the justices had to interfere even before the Supreme Court heard the Bush team's arguments because the recount might "cast a cloud upon what [Bush] claims to be the legitimacy of his election." In other words, the conservative justices moved to avoid the "threat" that Americans might learn that in the recount, Gore got more votes than Bush. This is presumably "irreparable" harm because if the recount proceeded and the truth once became known, it would never again be possible to completely obscure the facts. But it is not the job of the courts to polish the image of the legitimacy of the Bush presidency by preventing disturbing facts from being confirmed. Suppressing the facts to make the Bush government seem more legitimate is the job of propagandists, not judges.
By taking power from the voters, the Supreme Court has tarnished its own legitimacy. As teachers whose lives have been dedicated to the rule of law, we protest.