The Supreme Court and the Presidential Election of 2000: An essay by Huck Gutman published in The Statesman, Kolkata (Calcutta) , India

"By the Coat-Tails"
December 5, 2000

       The endless struggle of United States to declare a winner in the Presidential election seems finally concluded.  And in a way it is: George Bush will be the next President of the United States.   Already several distinguished academics are looking toward the next election, pledging to make voting procedures efficient and uniform all across the country.  What happened in the state of Florida will, hopefully, never happen again in a nation which uses technology to manage its money, its electricity and phones, its e-mail and fax, but does not appear capable – either mechanically or by hand – of counting by ones in order to find out which candidate received more votes in that state’s election.

       Anyone in touch with the pulse of America has the lingering feeling that enormous damage has been done to the larger fabric of the nation.  The damage is not to the political system itself, even though many believe that  Mr. Al Gore won the election and that Mr. George Bush should not be President.  Had the disputed votes in Florida been counted and had Mr. Gore emerged the winner, Republican supporters of Mr. Bush would have been equally outraged.  There was certain to be a large body of discontentment whoever was finally declared the victor.

       Rather, the great rent in the American political fabric is more likely to be a rupture in the American respect for law and the system of justice.  Of all the government institutions in the country, the Supreme Court has commanded the greatest respect.  Americans know that there are conservative justices – usually appointed by Republican presidents – who can be counted on to vote as conservatives.  They know there are moderate and liberal judges – some appointed by Democratic presidents, some surprising the Republican presidents who appointed them – who can be counted on to vote as liberals.  And they know there are almost always some ‘swing votes,’ justices who occupy a center ground and side with liberals on some occasions and conservatives on others. 

       This conservative-moderate-liberal lineup has been in place for several decades, and it has led Americans to believe that the Supreme Court is, while not above politics, more committed to finding just solutions than to getting into the streets and gutters to mix it up in domestic politics.

       Americans no longer hold this belief that the Supreme Court is largely above narrow politics.

       They have seen the Supreme Court halt the counting of disputed ballots in Florida, saying damage could be done if the ballots were counted before all court decisions were rendered.  And then two weeks later they have watched as the  Supreme Court heard the Florida case again, and decided that since there was no longer enough time to count the ballots, Bush was the winner. 

       That is known as a “Catch-22,” after a famous novel of that name by the writer Joseph Heller, and refers to a circular logic that leads nowhere but to the emphatic assertion of the status quo.  What the Supreme Court did was to say, “Don’t count the ballots until later,” and then say later, “It is now too late to count the ballots.”  Thus did the Supreme Court affirm the election of George Bush as President.

     There is more going on than mere circular logic.  Here is what a young friend in America said to me about the Court: “Did you pay close attention to the Supreme Court decision, which is going to label this court for eternal infamy? In addition to the Catch-22 you mention, and the one-sided stay which declared counting the disputed ballots would do ‘irreparable harm,’ the majority also ruled in stark contrast to almost every other ruling they've ever made as far as state rights and breadth of  judicial review.”

       This young scientist man has put his finger on one of the enduring legacies of the 2000 Presidential election.  This is, indeed, a court which will go down in infamy, abandoning its principles to serve the interests of a particular political party. 

       He also points out the irony of the majority decision.  The active interference with the vote counts, amounting finally to an obstruction of any attempt to carefully count disputed ballots, came from conservative judges; the limitations on the Florida courts came from justices who consistently state the federal courts should allow the states to govern themselves.  The three arch-conservative justices, who quite possibly disenfranchised thousands by making a recount impossible, are the same justices who on every other occasion decry judicial activism.  The obstructionists are those who believe the Court should never intervene in state or political processes, even at those times when Court intervention is necessary to protect political liberties.

       But when it came time to whip up a Republican omelet, the conservative justices were not averse to cracking some eggs.  Even if those eggs were their own long-maintained legal beliefs and opinions.  Even if with the breaking of eggs came the reversal of one of the major Court decisions of the twentieth century, that every person’s vote should be counted, that each vote should be as significant as every other vote. (“One man, one vote,” the Supreme Court decided in an epochal decision.)

       It is not with the ultimate decision that the nation has a problem.  As with the recount itself, whatever the Justices decided would have offended many.  But the crass political reasoning which led a slim majority to abandon the principles of a lifetime so they could achieve a particular political result in a disputed election: that crassness will not be soon forgotten.  The cowardice which refused to render a verdict but made rulings which decided the election anyway: that too will not be soon forgotten.

       The court system is a strange thing.  It depends on public trust, on public confidence.  In the past several weeks, the highest court in the United States, the Supreme Court, has badly ruptured both that trust and that confidence.  This, unhappily, may be the enduring legacy of the 2000 election.