Scalia, Thomas, Kennedy and O'Connor: Continued Lame False Defense of Bush v. Gore

They just will not let it go. And rightly so, because it will haunt their reputations forever. Yes, Bush v. Gore:

Three of the five Supreme Court justices who handed the presidency to George W. Bush in 2000 say they had no choice but to intervene in the Florida recount. Comments from Justice Anthony Kennedy and retired Justice Sandra Day O'Connor are in a new book that was published this week. Justice Antonin Scalia made his remarks Tuesday at Iona College in New York.

. . . "It's water over the deck _ get over it," Scalia said, drawing laughs from his audience. His remarks were reported in the Gannett Co.'s Journal-News. . . . "Counting somebody else's dimpled chad and not counting my dimpled chad is not giving equal protection of the law," Scalia said at Iona. . . . "A no-brainer! A state court deciding a federal constitutional issue about the presidential election? Of course you take the case," Kennedy told ABC News correspondent Jan Crawford Greenburg in her new book, "Supreme Conflict."

Kennedy said the justices didn't ask for the case to come their way. Then-Vice President Al Gore's legal team involved the courts in the election by asking a state court to order a recount, Kennedy said.

O'Connor said the Florida court was "off on a trip of its own." Still, O'Connor said the outcome of the election would have been the same even if the court had not intervened.

Every bolded statement is unquestionably false. First, Bush went to court first NOT Gore. Bush filed a federal lawsuit challenging the recount. Second, the Florida Supreme Court decided SOLELY state law. It made NO ruling on federal law whatsoever. Third, if the view of equal protection expressed by Scalia is TRULY his view, then he has been lying in every OTHER EPC case he has opined in. Fpurth, Gore would have won if the recount would have been allowed. In all scenarios where there was a statewide recount that included overvotes, not dimpled chads issues. Just the overvotes.

But let's face it, what is left for these Justices to say? There are no fools here. Their actions in Bush v. Gore were beyond despicable - they undermined democracy and they undermined the Supreme Court as an institution. It is not at all clear we will ever get over what they did. Of course, one can play pop psychologist and see in the SCOTUS decisions of the past 6 years guilty consciences in Justices Kennedy and O'Connor. Lawrence, Hamdi, Rasul, may be the handiwork of that guilt. But we won't forget Bush v. Gore.

In this post I took on Ann Althouse's view of Bush v. Gore:

Althouse wrote:
. . . Among courts, the United States Supreme Court goes last. With no higher court, it cannot be reversed. It has the pseudo-infallibility of finality. . . . Many of those who were hoping to see a shift in the votes that would elect Al Gore contended that we could afford several more weeks of uncertainty and a political fight in Congress to make the final determination. Justices Souter, Breyer, Ginsburg, and Stevens all thought the United States Supreme Court ought to have sat out the dispute and left it to Congress to right any wrongs that the various efforts in Florida might have caused. . . . But as Justice Stevens wrote in Printz v. United States:
"Since the ultimate issue is one of power, we must consider its implications in times of national emergency." Printz held that Congress may not "commandeer" the executive branch officials of state and local government, in a case that involved the use of local law enforcement officials to do background checks on gun purchasers. Dissenting, Justice Stevens stressed the seriousness of finding a lack of power to do something that might be extremely important in an emergency.

. . . Did the members of the Court who managed to end the election controversy on December 12 go wrong? The concurring opinion dared to take a close look at the state court's statutory interpretation and declare it a sham. That could be seen as taking over the state court's role of saying what state law is, but there must be some limit to the extremes to which a state court can go in calling things state law. The United States Supreme Court has a duty to defend its own lawsaying role. Did the per curiam opinion arrogate a power to determine state law by assuming there was nothing more to decide about the deadline? But the Florida Supreme Court had committed itself to the December 12 deadline, and one can well understand the good sense in denying that court a chance to reconsider.

. . . Just as the Florida Supreme Court had cloaked itself in the language of statutory interpretation in what seems to have been an effort to protect itself from the United States Supreme Court, the United States Supreme Court, though it had no higher court from which it needed shielding, wrapped itself in the language of judicial restraint in what seems to have been an effort to protect itself from the attack to which it is exposed: criticism in "the political sphere." In a stroke of poetic justice, even as the Florida court's references to statutory interpretation could not protect it from the attack of a United States Supreme Court that is determined to reverse it, the United States Supreme Court's references to the unwilled, apolitical nature of its role could not shield it from the attacks of those who are determined to criticize. The Supreme Court's critics themselves use the cloak of language and are subject to rejection when people do not take their writings at face value.

In the end, Bush v. Gore works best as a rich and revealing case study of the human mind in action. . . . . I will end my effort, having attempted to show something of the interplay between the Florida Supreme Court and the United States Supreme Court as both courts, though they were staffed by human beings who had to have cared about who became President, struggled within a system of separated state and federal legal authority and orthodoxy about the role of judges.

Let's start with the last, and to me, the most important part of the pile [. . .]:

In the end, Bush v. Gore works best as a rich and revealing case study of the human mind in action. Everyone who talks about Bush v. Gore without admitting that they are engaged in the same kind of cloaking and advancing of personally preferred ends is still an active participant in that larger display. . . . I will end my effort, having attempted to show something of the interplay between the Florida Supreme Court and the United States Supreme Court as both courts, though they were staffed by human beings who had to have cared about who became President.

Now is the election of the President the one issue Justices care about? Do they NOT care about, say, the issue of abortion rights? Is Althouse NOT admitting that a potential Justice like say, Sam Alito, who is quite open about his belief that not only is abortion a moral wrong, but that Roe was wrongly decided, is going to be strongly influenced by that belief?

. . . But it is worse than that. Because even a legal realist like myself understands that the judicial rules place limits on how much wiggle room judges have to achieve their desired results. Concepts like precedent, consistency, rules of construction, political question doctrine, etc., place limits on the ability of judges to render any result they deem the correct one. And in a case like Bush v. Gore, adhering to those rules is more important by a factor of 10 than in any other case. It is precisely because of what was being decided that the SCOTUS' actions in Bush v. Gore were egregious in a manner almost unequalled in the history of the Court. They should never have taken the case period.

But it is even worse than that. Because Bush v. Gore is so obviously nonsense as a judicial ruling. No one believes it as even close to being sound law. Equal protection? That does not even rise to the level of laughable. And Althouse knows this. She will not even bother to defend it on legal grounds.

Her grounds of defense are the SCOTUS had the power. And, implicitly, that the Florida Supreme Court did the same thing. In effect, she adopted Scalia's argument - who gets to decide - the Florida Supreme Court or the United State Supreme Court? For Scalia and Althouse, it is obvious, the SCOTUS does.

Well, certainly it had the POWER to do so. But to appeal solely to POWER is to eviscerate the concept of law itself.

Let's assume for the sake of argument that the Florida Supreme Court DID act in a naked results oriented manner. Or to put it as Althouse did:

the Florida Supreme Court had cloaked itself in the language of statutory interpretation.

But this is a perfectly acceptable action by the Florida Supreme Court. They are the ultimate arbiter of FLORIDA law, which was what was at issue here. To say that the Presidency was being decided is only a question of circumstance. The LEGAL issue was STRICTLY a Florida election law question. In no way was federal law implicated in a real sense. The safe harbor argument had fallen by the wayside. The silly Article II argument was always completely absurd. Since the Florida Supreme Court was determining what Florida law was, AS COURTS DO ALL THE TIME, there was no way that could be ruled a change in the law.

So, assume the worst, the Florida Supreme Court acted completely with an eye to favor Gore. It still was exclusively a question of Florida law.

Althouse wrote

That could be seen as taking over the state court's role of saying what state law is, but there must be some limit to the extremes to which a state court can go in calling things state law.

Limits? It WAS undisputedly state law!! Did someone argue that Florida election law is not Florida law? Of course not. What extreme is Althouse talking about?

Finally, what was the essential difference between the actions of the Florida Supreme Court as compared to the SCOTUS'? Very simple. The Florida Supreme Court HAD TO DECIDE the case. [The appeal was to the Florida Court of Appeals and was epxedited to the Supreme Court of Florida. Some would a rgue that the Supreme Court of Florida could have denied the expedition petition. I consider people who make that argument simply not worth talking to on the subject. Yes time was not of the essence said the SCOTUS.] It had no choice. It could have ruled in favor of Bush or in favor of Gore. But it HAD to rule.

The Supreme Court of the United States had no such compulsion. Cert denied is all they had to say. They chose to do otherwise.

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    Tell you what... (1.00 / 1) (#10)
    by Slado on Thu Jan 25, 2007 at 04:52:32 PM EST
    If I agree to go back in my time machine in redo the Gore v. Bush decision because it's bad law will you use yours to revers the Roe v. Wade decision that "everybody" knows is bad law?

    Bush would have won anyway and the Ohio stuff is even more ludicrous.

    Funny how when the democrats won elections this past year there were not election scandals.


    Althouse....Legal ninny (none / 0) (#1)
    by kindness on Thu Jan 25, 2007 at 02:21:23 PM EST
    I always enjoy Glenn Greenwald when he directs his ire Ann's way.  How the right uses her as some sort of legal savant has always been a mystery to me.  I'm not a fan of Volokh's, but I think he is slightly better.

    scrolling forward to 2004 (none / 0) (#2)
    by scribe on Thu Jan 25, 2007 at 02:43:26 PM EST
    we can now say that Bush did not legitimately win Ohio, either.  Several Cuyahoga County elections officials were convicted yesterday of rigging the recount in that county.  From the article:

    Two election workers were convicted Wednesday of rigging a recount of the 2004 presidential election to avoid a more thorough review in Ohio's most populous county.

    Jacqueline Maiden, elections coordinator of the Cuyahoga County Elections Board, and ballot manager Kathleen Dreamer each were convicted of a felony count of negligent misconduct of an elections employee. They also were convicted of one misdemeanor count each of failure of elections employees to perform their duty.

    Prosecutors accused Maiden and Dreamer of secretly reviewing preselected ballots before a public recount on Dec. 16, 2004. They worked behind closed doors for three days to pick ballots they knew would not cause discrepancies when checked by hand, prosecutors said.

    Not much use having a recount, if it's known in advance the ballots involved "would not cause discrepancies".

    And, yes, while the prosecutor did not allege that the chicanery affected the outcome of the election, the charges he pursued didn't require such an allegation, nor proof that the misconduct affected the election result.  Never allege anything you don't have to prove to win.

    scribe (none / 0) (#5)
    by jimakaPPJ on Thu Jan 25, 2007 at 03:30:48 PM EST
    And, yes, while the prosecutor did not allege that the chicanery affected the outcome of the election

    Somehow I believe if he could have he would have.


    lawyering lesson #5 (none / 0) (#6)
    by scribe on Thu Jan 25, 2007 at 03:56:20 PM EST
    Never allege anything you don't have to prove to win your case.

    1.  Why make extra work for yourself?
    2.  Don't give your adversary a chance to poke their nose in an irrelevant part of your case.
    3.  Don't distract from what's needed to win.

    I guess you missed that part of it.

    Still, had there been an honest recount in Cuyahoga County, Kerry would have won.


    What are you saying (none / 0) (#8)
    by scarshapedstar on Thu Jan 25, 2007 at 04:16:31 PM EST
    That he was a liberal prosecutor?

    Shouldn't you support him? Or do recounts now fall under the three PPJ priorities of national security, national security, and national security?


    Nicely done! (none / 0) (#13)
    by Molly Bloom on Thu Jan 25, 2007 at 06:11:48 PM EST
    Affecting the outcome (none / 0) (#9)
    by roy on Thu Jan 25, 2007 at 04:19:34 PM EST
    The prosecutors went beyond not alleging that the outcome was affected.  They said the outcome was not affected:

    Prosecutors have assured the public that nothing the board staff did affected the outcome of any race. The county recount actually showed Sen. John Kerry, the Democratic nominee, gained a net of 23 votes, yet Bush won the state by more than 118,000 votes.

    Were these board members Republican? (none / 0) (#11)
    by Dom on Thu Jan 25, 2007 at 05:11:40 PM EST
    Cuyahoga County votes Democratic by a 2:1 margin. Wouldn't the Board of Elections be appointed by Democrats?

    well (none / 0) (#4)
    by HeadScratcher on Thu Jan 25, 2007 at 03:29:44 PM EST
    Having been a person who 'voted' for Buchanan down here in Palm Beach County, I remember reading a study done by a group of newspapers which basically said that the 'winner' of the election in 2000 depended upon 1) what standards were used to count a vote and 2) who applied those standards. Remember, this is what led to the increase in electronic voting machines.

    My favorite video shot was of two people staring at a dimpled chad and one saying "Bush" and the other saying "Gore".

    Dimpled chads (none / 0) (#7)
    by scarshapedstar on Thu Jan 25, 2007 at 04:15:13 PM EST
    Were not the only issue. Dimple chads did not disenfranchise tens of thousands of innocent people.

    Supreme Court Elected President (none / 0) (#14)
    by iviewit on Fri Jan 26, 2007 at 12:02:25 AM EST
    Ok, somebody has to take responsibility for this joke of a President and certainly the American people would never have elected a complete lame without a little election fraud and a Supreme Court nod.  My question, is if it is found that this President took us to war on falsified info and has committed war crimes, what court will try him.  Certainly not the same guys who thrust him into power with a little legal witchcraft, this would be a conflict.  Would we have to try the Justices for electing a Hitler type President?  

    I am firmly convinced that the Supreme Court only aided and abeted the overall election fraud that took place.  Since the time these guys have sieged the oval office, and all of them political and business failures (Cheney, Rumsfeld, Condi, etc.), our country has gone to hell in a bucket.  Hell the Supreme Court should be looking at the legality of a President, they picked, who is violating the Geneva Convention, starting wars with knowingly wrong countries and bs and is soon to be tried for war crimes.  Oh look, someone filed charges, and their are many names on the suit, against these clowns for war crimes.  Filing at http://www.ccr-ny.org/v2/GermanCase2006/extendedsummary.asp .  No it was filed in Germany because the United States high command are the ones being charged, including attorney generals and the likes, with conspiracy and war crimes.  Should the Justices who picked this puppet so be included in the charges for picking him and allowing election fraud.  Why does the court not even care about protecting America's vote, are they the ones removing it.  This Supreme Court is a joke and perhaps why Sandra left the court stating the country was in the throws of a dictatorship.

    I am of the opinion that if elections were frauded we should remove every reminant of these clowns, anyone they elected and begin the trials in a court with men of justice, not men who elect dictators for us.

    Down with the King (Decider) and his court of jesters!!! G-d save the children!

    Iviewit & Patentgate (none / 0) (#15)
    by iviewit on Fri Jan 26, 2007 at 12:07:33 AM EST
    Election fraud and Supreme Court picked presidential failures; all roads lead to http://www.iviewit.tv and Patengate.  Read the whole truth about the siege on the United States and attempts at stealing trillion dollar technologies.

    The Taney Court of our day (none / 0) (#16)
    by rhbrandon on Fri Jan 26, 2007 at 06:39:32 AM EST
    The damage to the rule of law caused by Bush v. Gore can be repaired over time and with courage and resolution. The damage to the reputation of the Court so long as Scalia, Thomas, and their progeny in the likes of Roberts and Alito sit on the bench is ongoing. For all her words, O'Connor's reputation is blackened, and there is little she can do about it. Rehnquist, may God rest his soul, was already infamous.

    They truly are the Roger Taneys of our day.