Last week, Majority Whip Tom DeLay called the Florida Supreme Court ruling ordering the manual vote count in Florida an “act of judicial aggression … that cannot stand.” Then Speaker of the House Dennis Hastert joined the chorus, describing the Florida Supreme Court justices as “political hacks.” On Sunday, Meet the Press commentator Tim Russert embarrassed Majority Leader Dick Armey, who denied attacking the Florida court until Russert pointed to the exact language — on a press release sent out by Armey’s office. “Oh, yeah,” Armey said. On the same program, Russert asked George W. Bush’s Florida point man, James Baker, if Bush would accept the results of a recount in Florida if the U.S. Supreme Court were to order the recount to continue. “Of course, we’ll begin the recount again if that’s the ruling of the United States Supreme Court,” Baker said. Pressed to respond to the question about whether Bush would abide by a U.S. Supreme Court decision, Baker avoided the question. “I’m not sure I know what you mean,” he said.
The Republican response to federal and state courts’ role in the presidential election has been consistent — until Tuesday night, when the U.S. Supreme Court, in an bold act of judicial activism, handed the presidency to Gov. Bush. Justice Ruth Bader Ginsburg — usually described as a “liberal” on a court on which there are no liberals — was one of three dissenters attacking the five most conservative members of the court. “Rarely has this Court rejected outright an interpretation of state law by a state high court,” wrote Ginsburg. She questioned her colleagues’ overreaching decision, handed down after the “Florida Supreme Court has produced two substantial opinions within 29 hours of oral argument.”
Ginsburg’s dissent was even eloquent in its understatement, as she addressed the three precedents Chief Justice William Rehnquist used to justify overturning the Florida court’s decision.
Two of those cases were handed down by the Earl Warren court — regularly derided by conservatives such as Rehnquist for its judicial activism. One, in 1958, “in the face of Southern resistance to the civil rights movement,” was a ruling defending the NAACP against selective prosecution by the Alabama Supreme Court. The other, in 1964, overruled the South Carolina Supreme Court when it upheld the criminalization of “a lunch counter sit in,” although no state statute described a sit-in as a criminal act. Both rulings, in other words, protected African-Americans involved in a struggle for their civil rights. Ginsburg found no compelling reason for the Rehnquist court to overturn the Florida Supreme Court interpreting its own law.
Ginsburg’s dissent reveals the hypocrisy in the conservative court’s rejection of judicial activism. The Rehnquist Court — like the all-Republican Texas Supreme Court — is willing to engage in the most overreaching judicial activism when it serves the purpose of advancing the court’s political prerogatives. No complaints thus far from Armey, Hastert, DeLay, or Baker…
We were incorrect to state that Olympus Real Estate Corp. acquired controlling interest in Stratus Properties (“Stratus Flows Downhill,” Dec. 1). But it was not the reporter’s error; it was an error made by the editors, confusing control with ownership. Stratus’ lawyer Richard Suttle called us on our mistake, suggesting that we check out the ownership of Stratus: “It is a public company, and as such this information is readily discernible with a modest effort.” Reporter Robert Bryce had already made the effort, and he reports on it in this issue (“Remote Control?,” p.24). But such reporting is a dicey business. SEC filings, as Bryce notes, can be (intentionally) opaque. So barring voluntary disclosure, we’re still not sure who all the players are in Stratus.
This article appears in December 15 • 2000.