Renata Adler - After the Tall Timber

It is, however, simply not in the power of the Court to determine that its decision has no precedential value. All decisions of the Court have such value, though it is hard to see how this particular travesty could serve as precedent for anything — or, for that matter, how it could be abandoned or overruled. But a special case, with no precedents and no future applications, is a case that, for ancient, profound, and lasting reasons, no court under our system is entitled to decide. No court has a right to say, This case is the law, crafted for one citizen, George W. Bush, and for him alone.

Linda Greenhouse, in The New York Times two days after the decision, got it just right. “Among the most baffling aspects of the opinion,” she wrote, “was its simultaneous creation of a new equal protection right not to have ballots counted according to different standards and its disclaimer that this new constitutional principle would ever apply in another case.” The “new constitutional principle” never could apply in another case, because it does not and could not exist. It would disallow every election in the country — in the history of the country. The Platonic ideal of a voting machine that the chief justice seems to envision, “precisely designed” to create uniform standards nationwide, does not exist either. If it did, the Court would have no power to impose it. Nor would Congress. The notion of machines, “precisely designed” and even of “uniform standards nationwide,” raises the question of who, or what, designs, imposes, and oversees them. And the necessary centralization of power and order that this implies is precisely the way nations lose the power to vote.

In Bush v. Gore , the citation of “precedents” that are not precedents, particularly civil rights cases ( NAACP v. Alabama , for example, or Bouie v. City of Columbia , a 1964 case involving black sit-in demonstrators: “What we would do in the present case,” the concurrence says, “is precisely parallel ”) conveys the degree of disingenuousness and spite that has so frequently characterized Rehnquist’s opinions. His tone in the majority has perhaps carried over from the years when he was most bitterly in dissent. Justice Ginsburg dealt with this sort of citation. The Florida Supreme Court, in its finding that “counting every legal vote” was the “overriding concern” of Florida’s Election Code, “surely should not be bracketed with state high courts of the Jim Crow South.” She dealt with the chief justice’s other “casual citations” as well, pointing out how few and inapposite they were.

There is also, in the decision, an unusually high measure of hypocrisy, particularly in its affectation of helplessness: “None are more conscious of the vital limits on judicial authority than are the members of this Court…. However, it becomes our unsought responsibility to resolve … issues the judicial system has been forced to confront ” and so forth. (In hearings before the House Appropriations Committee in March, Justice Kennedy, along with his remarks about “trust,” actually pointed out, in defense of the per curiam , that it was not the justices who filed the suit.) Apart from outright misrepresentations of the law, there are several gratuitously insulting comparisons between Katherine Harris and the Florida Supreme Court (“The Florida Supreme Court, although it must defer to the Secretary’s interpretations, … rejected her reasonable interpretation and embraced the peculiar one”) and myriad inconsistencies. The decision, which has just said that the state court “must defer to the Secretary’s interpretations,” suddenly pretends that it confronts “a state court with the power to assure uniformity ” in vote counts — a “power” that the Florida Supreme Court manifestly lacks.

And there are, at the core, some outright lies. Even the statement that seven justices of the court essentially agree, for example, and that “the only disagreement is as to the remedy,” is false. The two justices whom the majority tries to embrace, Souter and Breyer, begin their dissents with clear statements that the Court should not have taken the case, that it was wrong to grant a stay, and that the decision itself is wrong. That puts rather a lot of weight on the “only.” Souter and Breyer did try to salvage something from the debacle by giving the Florida Supreme Court another chance to meet even the most specious arguments of the per curiam . But the majority, with its own agenda, would not permit even this.

It is not enough to say that this is the most lawless decision in the history of the Court. People have said, Well, somebody had to decide what the outcome of the election was, one way or the other. But somebody was deciding (or rather had decided) it: the voters. If the outcome remained in doubt, Congress would decide, or remit the choice to the Executive of the state. Others have said that we were approaching chaos, a constitutional crisis, that only the Supreme Court, in its robes and its wisdom, could resolve. But there was no constitutional crisis, except the one of the Supreme Court’s own creation. The events in Florida and the unfolding story were in fact a kind of political thriller. Voters were rather enjoying the suspense, when the Court, for its own reasons, jumped right in to stop the contest, so as to ensure that no one, ever, would find out the score.

What does it matter? The system has always been strong enough to withstand mistakes of every kind, poor policies and choices, corrupt administrations, bad judgments on the part of elected and electorate alike, bad laws, unjust verdicts, rigged elections, miscounted votes, and bad decisions by malign or misguided courts. In Chapters of Erie , still the best work of muckraking in our history, Charles F. Adams Jr. and Henry Adams devoted many chapters to the corruption of the courts. But there is something different about Bush v. Gore .

III.

It has now become clear that the recent case is only the latest and most extreme in a series of cases, Morrison v. Olson, Clinton v. Jones , and the initial remand to the Florida Supreme Court for “clarification.” And it was Antonin Scalia, in his dissent in Morrison v. Olson , who gave us the clearest indication of what has happened here and what is really at stake. Morrison v. Olson , decided in 1988, was the case in which the Supreme Court overruled the Court of Appeals for the District of Columbia, and upheld, as constitutional, the Ethics in Government Act of 1978, which established the office of independent counsel. Justices Brennan, Blackmun, and Marshall were still members of that Court, but Scalia’s was the sole dissent. His opinion was eloquent and well reasoned, and he alone was right. It was as though the justices, and everyone else who should have known better, were not paying attention.

Scalia pointed out that, under the act, the independent counsel, or special prosecutor, would have virtually unlimited power — scope, discretion, funds, staff, tenure. He quoted at length from a great speech by Justice Robert Jackson, delivered in 1940, when he was still attorney general, about the temptations and the duties of any prosecutor, his vast powers and immense discretion, and the dangers of abusing them — specifically, by not “discovering the commission of a crime and then looking for the man who has committed it,” but “picking the man” and then “putting investigators to work, to pin some offense on him.” Any prosecutor, Jackson said, “stands a fair chance of finding at least a technical violation of some act on the part of almost anyone,” and then “the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious.”