SUPREME 5: Rehnquist, Scalia, O'Connor, Thomas, Kennedy:
(CH, L, CW) (what
do these signs mean?)
radical right claims to venerate the Constitution and
the Founders. Yet little could fly more directly in
the face of the Founders' values than the Supreme Court
picking the person to serve as President. The reason
is simple. The Supreme Court is the farthest from popular
control of any government institution. Justices are
appointed for life and have extraordinary power. While
most of us agree that we want a referee on constitutional
questions who doesn't need to read the popular polls,
we also do not want that referee to become a power in
and unto themselves. They are the usual court of last
resort for a democratic republic, not an aristocracy
means that justices MUST be appointed by representatives
of the people. For them to pick the person charged with
naming them to office is a serious and disturbing violation
of the separation of powers. They become even more free
from popular control.
the man who currently
sits in the Oval Office so consistently seeks
to appoint extreme ideologues, justices whose sense
of democratic values is as weak as their sense of basic
decency, demonstrates how serious this matter is. Read
what we have discovered about Kuhl,
or Pryor or
Owen and ask
yourself if you would feel good having such a person
determining how the law applies to yourself. Unless
you are a big corporation or perhaps a fundamentalist
church, you should be concerned, very concerned.
such a man might be able to appoint new Supreme Court
justices in the image of his two favorites: Scalia
says even more about the corrupt are in harmony with
the American people or most American jurisprudence.
That their votes enabled them to pick the man who might
name their successors indicates how far from the Founders'
vision these so-called advocates of "strict construction"
have wandered. Like Fundamentalist Christians interpreting
the Bible, they read into the Constitution what they
want to find, and then say it is the word of our Founders.
But as Bruce Ackerman wisely says, " In our democracy,
there is one basic check on a runaway Court: presidential
elections. And a majority of the justices have conspired
to eliminate this check."
was no need for the court to intervene. The Florida
Supreme Court had ruled. David Strauss, Harry N. Wyatt
Professor of Law at the University of Chicago, in a
careful examination of the case, wrote: "The Florida
Supreme Court decision that was overturned in Bush
v. Gore was consistent with the plain language of
the principal statute involved the Florida statute
governing contests of election certifications
and neither the concurring opinion nor, as far as I
am aware, anyone else, has seriously contended otherwise."
For Republicans, the Florida Legislature, in a foretaste
of later extreme right politics, was threatening to
unilaterally give the state to Bush. Both were in keeping
with what the Constitution allowed. Neither established
the precedent of the Supreme Court picking its own successors.
essay is at:
the lawless character of the Supreme Court's ruling
is demonstrated in the majority justices claiming, "our
consideration is limited to the present circumstances,
for the problem of equal protection in election processes
generally presents many complexities," the court
explicitly abandoned law by precedent in favor of law
by judicial decree. If an honest justice had asked,
"well then, what should we do?" The answer
most in keeping with the Founders would be "Stay
out of it."
Calpundit wisely noted
Supreme Court's egregious use of the equal protection
argument in Bush v. Gore, and that fact that
the majority obviously knew it was egregious since
they tried to prevent anyone else from ever using
it again, is the most obviously cynical part of the
for September 18, 2003
Alan M. Dershowitz, Supreme Injustice: How the High
Court Hijacked Election 2000 (Oxford University