Sunday, April 5, 2015

The Open Box: Bush v Gore Revisited

"The most perverse misuse of the Equal Protection Clause I've seen in my 40 years of law."

Alan Dershowitz, Harvard Law Professor on the Bush v Gore decision

In the crashing aftermath of the landmark Bush v Gore decision in 2000, a case in which the Court effectively picked the President by a 5-4 margin, entirely along partisan lines, many were enraged. How could the five justices completely ignore their openly avowed conservative principles and, in bold, hypocritical fashion, render a decision based simply on power?

How could this be?

Many of us are familiar with the old metaphor of "Pandora's Box". Based on Greek mythology, it was a story of a woman named Pandora who possessed a box that contained all the evils of the world. Unable to restrain herself, she cracked open the forbidden box. Suddenly, out flew these demons, and try as she may, they could not be put back in the box.

                                                    Today the phrase "to open Pandora's box" means to perform an action that may seem small or innocent, but that turns out to have severely detrimental and far-reaching consequences.

You see, what happened in Bush v Gore cannot be explained unless you go back in time, back to the days when well meaning justices, thinking of equity in their day, quietly lifted the lid to the forbidden box.

In the Bush v Gore decision, interestingly the Court only relied on four prior decisions. (One other was mentioned in a perfunctory manner). These decisions were:

Gray v Sanders (1963)
Reynolds v Sims (1964)
Harper v Virginia Bd. of Elections (1966)
Moore v Ogilvie (1969)

All of these decisions were during the era of Chief Justice Earl Warren, a man determined to make things right--even if that meant departing from the Constitution. Justice indeed was achieved but did the end justify the means?

Each of these cases were voting rights cases in which people were unjustly denied proper voting rights. From giving unequal voting power to rural counties, to improper apportionment, to an inability to register, to finally an improper formula for electors. In each case, Warren's Court was clearly achieving justice by invalidating those state laws. All based on the famous dictum stated in the first case, "One Person-One Vote", a concept that has since become ingrained in the conscience of American society.There was only one problem:

Voting rights had been left to the states.

A dissenting justice, Frankfurter, quoted Representative Bingham, the author of the 14th Amendment (while going through the entire history of the voting rights):

"To be sure we all agree, and the great body of the people of this country agree, and the committee thus far in reporting measures of reconstruction agree, that the exercise of the elective franchise, though it be one of the privileges of a citizen of the Republic, is exclusively under the control of the States."

The Warren court had run roughshod over the rights of states and left behind the Constitution. What did the means matter? Did not the end result of justice for the voter justify it?

In a somber warning, Justice Harlan said this in dissent in Reynolds v Sims:

"What is done today deepens my conviction that judicial entry into this realm is profoundly ill-advised and constitutionally impermissible. As I have said before, I believe that the vitality of our political system, on which in the last analysis all else depends, is weakened by reliance on the judiciary for political reform."

Let's return now to 2000. Though accused of departing from their conservative principles, there is one legal principle held by all justices of every judicial stripe.

A legal principle by which judges are obliged to respect the precedent established by prior decisions. If Courts flip flopped back and forth from session to session society would have no firm footing upon which to live lives. Courts will reluctantly depart from this principle only rarely. Conservative jurist Scalia has said he will follow precedent, even if unconstitutional, if it involves a new legal principle that has been "generally accepted by society". (p 412 Reading Law)

Who would deny that "one person one vote" has been generally accepted?

The "Pandoras" on the Court in 2000 desperately tried to put the ghosts back in the "state" box. Witness their vain attempts:

"When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers."-Stevens

"The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: Federal courts defer to a state high court's interpretations of the State's own law. This principle reflects the core of federalism, on which all agree. "The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other." Ginsburg


 They were about 40 years too late.
The demons could not be returned to the box.

"Many liberals were brought up to believe that whatever happened to the other branches of government, the Supreme Court belonged to 'us'. It was 'ours'. Bush v Gore demonstrated the harm in empowering the courts to become actively involved in solving the nations's political problems--a harm liberals ignored as long as the solutions were ones they favored."

Dershowitz-Supreme Injustice (p 196)


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