FORUM

The U.S. Supreme Court’s decision in Bush v. Gore, which effectively awarded the presidency to George W. Bush, was widely predicted to diminish public respect for the U.S. Supreme Court. The Court’s interjection of itself into a political controversy and the perfect correlation between the Justices’ votes and their presumed partisan allegiances raised widespread allegations that the Court had rendered a blatantly political decision. The willingness of Justices who ordinarily defended states’ rights to impose stringent constitutional limitations upon Florida’s election procedures made the decision particularly odious to many of the Court’s critics.

Dire predictions began among the Justices themselves. In his dissenting opinion, Justice Stephen Breyer warned that the decision threatened a “self-inflicted wound – a wound that may harm not just the Court, but the Nation.” In another dissent, Justice John Paul Stevens expressed a similar foreboding. Stevens wrote that “[a]lthough we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.” Stevens also feared that the Court’s opinion “can only lend credence to the most cynical appraisal of the work of judges throughout the land.”

Breyer borrowed the “wound” metaphor from Charles Evans Hughes’s much-quoted observation in 1927 that the Court had sometimes suffered self-inflicted wounds through decisions in which it imprudently meddled in political controversies. Hughes referred to the Court’s infamous pro-slavery decision in Dred Scott v. Sandford (1857), its opposition to paper currency in the legal tender cases in 1869 and its nullification of the first peacetime federal income tax in 1895. Hughes’s metaphor is remembered primarily in connection with his remarks about Dred Scott, and many of the Court’s critics have prophesied that Bush v. Gore will have the same lasting infamy.

Nearly a year and a half after Bush v. Gore, however, the anticipated firestorm looks more like a few whiffs of smoke furiously fanned by a handful of the Court’s critics, mostly legal academics who were antagonistic toward the Rehnquist Court long before Bush v. Gore.

Criticism of the Court is almost wholly absent from the popular media and there is no organized movement to curtail the Court’s powers. Moreover, opinion surveys last summer indicated that Bush v. Gore had not appreciably affected overall public opinion of the Court. The Gallup Poll indicates that there was a small spike in negative attitudes toward the Court shortly after Bush v. Gore, but that opinion in June 2001 was exactly the same as it had been two months before the election – 62 percent of respondents expressed approval of the Court, while 25 percent expressed disapproval. Similarly, surveys conducted by University of Wisconsin Professor Herbert W. Kritzer and the University of Wisconsin’s Survey Center indicated that public opinion toward the Court remained much the same before and after Bush v. Gore.

Although the Gallup and Kritzer surveys indicated that Bush v. Gore did alter partisan perceptions of the Court -- with approval of the Court rising among Republicans and falling among Republicans -- the differences were not dramatic.

Indeed, the decision might actually have enhanced public opinion of the Court to the extent that the public perceived that the Court rescued the nation from a constitutional crisis. Polls indicated that Americans trusted the Court to resolve the election crisis fairly far more than they trusted Congress or state officials.

Moreover, the Kritzer survey indicates that the publicity surrounding the decision may have indirectly helped the Court insofar as it appears to have improved public knowledge about the Court. For example, the percentage of persons who could identify the number of Justices and name the Chief Justice increased, as did the percentage who understood that the Court can control its docket and does not use juries.

There are many reasons why Bush v. Gore has not generated widespread antagonism against the Court.

The complexity of the decision goes far toward explaining public apathy since the issues are too abstruse to command the comprehension, or at least capture the attention, of more than a very small number of Americans. Even among the sliver of well-informed persons who actually have read and understood the decision, the Court’s divisions are more likely to reinforce longstanding attitudes and perceptions. Bush v. Gore has naturally helped to confirm the belief of liberals that the Court’s conservatives are result-oriented. Some liberals, however, have welcomed the Court’s introduction of new constitutional standards into state electoral processes.

The reasons for the absence of any apparent wave of anti-Court sentiment also reflect political reality. The nearly 50 percent of the electorate who voted for Bush are not likely to complain about the decision. Although a handful of conservatives have expressed reservations over the Court’s scrutiny of electoral procedures about which federal courts traditionally have deferred to the states, few have voiced serious objections about a decision that produced a Republican president. And even many of Gore’s voters may not be inclined to feel wrathful toward the Court since few voters appear to have had supported Gore with much passion. Moreover, the surge in Bush’s popularity since September 11, which has provided Bush with a level of support almost without parallel in the annals of the presidency, has naturally diverted hostility away from the judicial decision that precipitated Gore’s concession.

Even if Bush were unpopular, however, it is unlikely that Bush v. Gore would have created any significant animosity against the Court. Public support for the Court has remained remarkably resilient throughout American history, even when the Court’s decisions have been broadly unpopular. Significant agitation against the Court generally has arisen only when the Court has rendered a long series of unpopular decisions which have directly affected Americans in their daily lives and when the Court has seemed likely to continue to had down such decisions.

Contrary to Hughes’s assertion that the Court wounded itself in its decisions in Dred Scott and the legal tender and income tax cases, none of those decisions generated any sustained effort to diminish judicial power. Hostility was mostly directed against the individual decisions and certain Justices rather than against the Court as an institution.

During the early twentieth century, however, the Court’s nullification of social and economic regulatory legislation and its restrictions upon the legal powers of labor unions produced significant animosity toward the Court that found expression in a broad array of proposals to restrict judicial power, including measures to permit Congress to overrule the Court’s decisions, require the concurrence of more than a majority of Justices to nullify legislation, and restrict the tenure of federal judges. This anti-Court agitation reached its climax in Franklin D. Roosevelt’s unsuccessful effort to “pack” the Court with six additional Justices in 1937.

Although liberal agitation against the Court evaporated after 1937 along with the Court’s hostility toward regulatory legislation, acrimony against the Court erupted among conservatives during the 1950s and 1960s as the result of the Court’s decisions on desegregation, domestic subversion, reapportionment, school prayer, and criminal rights. The Court’s critics once again advocated an array of measures to curtail the Court’s powers.

These and other movements to curb the Court have faced massive obstacles which have ensured their defeat. They have foundered upon the institutional obstacles inherent in the constitutional amendment process, the willingness of the Court to adopt positions that mute criticism, the recognition by the Court’s critics that judicial power could be harnessed to serve their own political agendas, and the widespread respect for the Court that is deeply entrenched even among its most ferocious critics.

In contrast to decisions that have generated organized hostility toward the Court during past periods of American history, Bush v. Gore is an anomalous decision. Since it is not part of any ongoing controversy involving discrete political issues, it will not make itself repeatedly felt in the daily life of the nation in the manner of the Court’s highly controversial decisions regarding criminal rights, school prayer, or abortion. Bush v. Gore merely settled the 2000 election; it did virtually nothing more. Although some conservative commentators, including Robert Bork, have expressed concern that the decision’s application of the equal protection clause will unduly intensify federal oversight of state election laws, even this effect would not have the vast impact of decisions during the Progressive and Warren Court eras that were so unpopular with large numbers of Americans that they generated significant anti-Court movements.

While the Court’s critics contend that Bush v. Gore is part of a larger pattern of judicial activism by the Rehnquist Court that tends to bring the Court into disrepute, any such tendency is not likely to significantly diminish public respect for the Court because the Court’s allegedly activistic decisions on such subjects as civil liberties and states’ rights have not generated widespread popular hostility. Americans generally do not care in the abstract whether the Court is faithful to precedent if they agree with the outcome of its decisions.

Moreover, as University of Virginia Law Professor Michael J. Klarman remarked in a recent law review article, the “Court might emerge from Bush v. Gore reasonably unscathed, because the remainder of the Court’s constitutional jurisprudence has been such a political grab bag of results,” with liberals winning in issues involving abortion, school prayer, and gender discrimination and conservatives prevailing in cases on affirmative action, parochial school aid, federalism, and criminal procedure.

Although some commentators predicted that Bush v. Gore would precipitate a serious effort to pare the Court’s powers, most have merely forecast that the perception of partisanship by the Court will exacerbate the intensity of the confirmation process for the next Supreme Court nominee. A rambunctious confirmation process would be likely even without Bush v. Gore, however, insofar as the Court is closely divided on many key issues, and the Senate and Presidency are controlled by different parties. Moreover, there was a growing recognition of the Court’s political role even before Bush v. Gore, and a concomitant increase in the Senate’s scrutiny of nominees. Although “Bush v. Gore” will surely be one of the battle cries of liberals during coming confirmation hearings, this decision is not likely to provide significant new ammunition against the Court.

Similarly, Bush v. Gore does not appear to have produced the acrimony within the Court that many commentators predicted in its wake. Some scholars have detected a diminution in polarization in various decisions during the past year, while Justice Ruth Bader Ginsburg and other Justices have sent public signals that the fissures of Bush v. Gore have not produced any enduring enmity among the Justices. As Drake Law Professor Thomas E. Baker observed at the end of the Court’s term last summer, the Justices “rolled up their sleeves and worked hard to put [Bush v. Gore] behind them.”

More surprising than the absence of any anti-Court sentiment arising out of Bush v. Gore is the almost complete lack of popular revulsion against the Electoral College in the wake of Bush’s election with fewer popular votes than Gore received. For decades, many political commentators had predicted that the election of a president with less than a plurality of the popular vote would result in the swift abolition of the Electoral College. Although several nineteenth century presidents were elected without a plurality of the popular vote, one would expect Americans of the twenty-first century to have far less tolerance for a system that would permit the loser of the popular vote to win the election. This had not occurred since 1888. Since then, popular democracy has made so many advances – the popular election of senators, the abolition of racial discrimination in voting, the enfranchisement of women, and the “one-person, one-vote” principle of apportionment – that one would expect voters to rebel against a system that did not permit the election of the choice of the largest number of voters. The near-malfunctions of the Electoral College in the elections of 1968 (which almost ended up in the House of Representatives) and 1976 (which nearly produced a disparity between the electoral vote and the popular vote) resulted in serious renewal of long-term efforts to abolish the Electoral College. In contrast, the Electoral College’s frustration of the will of the plurality in the 2000 election has produced hardly a whimper.

Widespread public acceptance of the Electoral College may reflect the same attitude that has sustained public acceptance of Bush v. Gore: people perceive that both produced a legitimate resolution of the election because they both followed prescribed procedures of constitutional law.

In warning that the Court might be wounding itself, Justice Breyer observed that “the public’s confidence in the Court itself...is a public treasure...built slowly over many years.” Although it is too early to tell whether Bush v. Gore will tarnish the reputations of individual Justices, the overwhelming public acceptance of the decision during the past year and a half seems to confirm that the Court has not lost any significant portion of its treasured public confidence.

May 2, 2002

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Discussion

JURIST welcomes your reaction to our columns and op-eds...

• Monday May 06, 2002 at 2:55 pm
  There's not much to hope for in the fact that the Supreme Court's abysmal conduct and convoluted reasoning blew over the heads of most of the general public. The general public is rarely involved in policy decisions about the Supreme Court. The significance of the Court's decision to become actively involved in the political process and to pick winners and losers according to its members' political preferences is not lost on the policy makers who count -- the United States Senate. No political party will tolerate a judiciary that puts a heavy thumb on the scales of justice in electoral matters. With a Republican president and a Democratic Senate, we currently have a crisis in getting any federal judge through the confirmation process. The Supreme Court's conduct in Bush v. gore only exacerbates the difficulties which the federal judiciary faces in staffing its vacancies. The confirmation of the next Supreme Court justice is likely to be a political nightmare. In Bush v. Gore, the Supreme Court opened the political Pandora's box. It's going to be a long time before the legal system can get the demons back inside.
  
  Richar Brudzynski
  Ohio

• Monday May 06, 2002 at 3:02 pm
  Professor Ross's article illustrates the principle in legal research that if you're going to use quantitative methodology to attack an essentially qualitative problem, the results are going to be highly superficial. The general reaction of law school professors to Bush v. Gore as reported by Professor Ross was predictable. It was clearly to be expected that the too-large number of law school professors who make a living teaching constitutional law were not going to bite the Hand that feeds them their cases. But none of Professor Ross's quick surveys or public opinion polls measures the depth of disenchantment with the Court. You simply can't measure depth by quantitative means. The depth of feeling will not go away, even if many commentators have chosen not to air their despair publicly. I suspect that in the near future we will see a deeper degree of cynicism about Supreme Court decisions than we have ever seen to date, that the clear politicization of Justices resulting from the lesson they taught us in Bush v. Gore will play itself out in an excruciating examination of any person who is proposed by the President to become a Supreme Court justice, that law students will become increasingly critical of the Supreme Court cases they read, and that professors who have thrived on Constitutional "theory" will see, if they haven't already seen, those theoretical sand castles crumbling. You can parse "strict scrutiny" and "moderate scrutiny" and "plain old scrutiny" so that they appear to line up a batch of equal protection cases, but when the Supreme Court comes along and employs a wholesale shift in the 14th Amendment to rationalize its decision in Bush v. Gore, the classroom hairsplitting exercises over degrees of scrutiny turn to inconsequential ashes. To be sure, none of these ramifications is itself "dramatic," to use the criterion that Professor Ross seems to adopt as his standard. But at bottom, using a quantitative method to assess the impact of Bush v. Gore is itself a form of trivializing its real mpact. Professor Ross's essay may simply be an exercise in begging the question.
  
  Anthony D\'Amato
  Northwestern Law School
  Illinois, USA

• Friday May 10, 2002 at 12:14 am
  A couple things our resident legal scholars should remember here:
  1. Scalia and Thomas didn't rule alone. There were 3 other, equally concerned justices who found for the Bush side. 2. If you read THE SECRET LIFE OF BILL CLINTON (by British journalist Ambrose Evans-Pritchard), SELLOUT (by David Schippers), and/or BETRAYAL (by Amy Chang who also wrote the recent book about the Rape of Nanking), it is obvious that what the Clinton regime was out of control legally, without extraordinary redress by another authority.
  3. 2,000 FBI agents picketed the White House in mid-December, risking retaliation well beyond loss of jobs and pensions. Although the given reason was opposition to a pardon for the Indian activist Pelletier (sp?), it also gave notice to Clinton-Gore-Lieberman that our domestic and national security communities might act, if there were any move to nullify the Presidential election -- to undermine the Constitution.
  Law/legalism which has become an obstruction to justice, as we see in the Hague, is an unendurable provocation. (Just read some of the discussion on JURIST's Milosevic page ... at http://jurist.law.pitt.edu/issue_milo_discuss.php )
  Lawyers and politicians would do well to tread lightly, regarding Election 2000. Political criminality is unlikely to ever again be as rife and shameless as it was in the past decade.
  There had been "supreme injustice" indeed, and Alan Derschowit's howling protests to the Supreme Court's overriding justice is (contrary to his intent, of course) music for rejoicing.
  
  Lou Coatney
  Illinois USA

• Saturday June 15, 2002 at 2:20 am
  Professor Ross merely argues that the perception of the court has not diminished in public opinion polls. He does not address the issue of the professional integrity and objectivity of the court in terms of impartiality in analyzing and interpreting the law regardless of politcal sympathies. The court's decision was cynical to claim that Bush's equal protection rights under the law were violated because Gore picked the counties he wanted recounted while Bush chose not ask for recounts in any counties given the outcome. The key constitutional issue was whether or not all citizens had the equal right to have their votes counted not whether the candidates had the right to pick and choose which counties could be recounted. The Florida Supreme Court had it right and was clearly more objective and impartial in interpreting the law by ordering that all undercount votes be examined in all counties regardless of the patterns of party affiliation and membership of voters by county. The Supreme Court decision was clearly partisan. The conservative court contradicted its own ideology of states' rights and alleged aversion to judicial activism that overrides the will of voters and legislators and thereby formulates public policy.
  
  Ricardo Miranda
  Los Angeles, CA

• Friday August 09, 2002 at 9:43 pm
  My confidence in the nation's highest court fallen (especially as I learned more about the treasonous five) as far as it could. Also, noting that you hold degrees from two ivy league universities, the mystique I once associated with those intstitutions is now gone. MR. Ross, you are either an idiot or a mediocre sophist. I take comfort in the fact that the SCOTUS has been so nakedly exposed for what it really is that your words, even if they were broadcast over the superbowl so that everyone would have to listen to them, are like a broom trying to sweep up an avalanche. Clearly Al Gore was the true winner of the election, and by installing the loser of the election the SCOTUS rendered a crack in the foundation of American democracy.Most people can see this now, and this point of view will be expressed in the history books. So you keep on sweeping Mr.Ross, keep amusing me. Actually, now that I think about it, I take bake the comment about you being an idiot. I certainly couldn't do as well as you if I had to argue for the integrity of this Supreme Court. I think the key to your being a better sophist is to just stay away from such obviously idiotic premises.
  
  William Moffett
  Florida, U.S.

• Saturday September 14, 2002 at 12:52 am
  I'm a Democratic lawyer and politician who shares many of the criticisms of the Bush v. Gore decision, but I find little to argue with in Prof. Ross's essay. However, as someone who has taught law courses, I also very much agree with Anthony D'Amato's comments above about the impact on teaching constitutional law or any kind of legal theory or principle. I certainly find it difficult to motivate myself to teaching law again. Prof. Ross is not the first to wonder at the absence of a post-2000 movement to abolish or reform the Electoral College. I think the answer is simple. Any criticism of the Electoral College now, and probably for some years into the future, would be taken, and perhaps rightly so, as an attack on the legitimacy of the current incumbent. His supporters respond with predictable outrage, and certainly refuse to entertain the possibility of a bipartisan reform effort. The constitutional amendment process requires nearly complete consensus, so it can't possibly be done if one of the political parties won't play. I'm guessing that a similar dynamic played out after 1888. Another factor is the psychologically resolving power of the inauguration of a new president, regardless of who won or what the election process was like. The losing candidate (the one not inaugurated) not only fades into irrelevancy but is scorned, and regardless of the circumstances is held personally to blame for his loss. Had the circumstances been reversed, and Gore elected with fewer popular votes than G.W. Bush, or say if Gerald Ford had managed to eke out an electoral college win in 1976 despite Carter's popular vote win, the losers of both contests would have seemed every bit as ridiculous in the media as Gore does now. It's a lot more compelling to argue in the wake of an election like 1976 that we -- yikes! -- ALMOST inaugurated "the loser" (who by then is seen as "a loser") than to say that we SHOULD have inaugurated "the loser".I doubt that the Electoral College will ever be changed.
  
  Lawrence Kestenbaum
  University of Michigan
  Ann Arbor, Michigan, USA

• Saturday September 21, 2002 at 9:18 pm
  Perhaps there is no organized political efforts to limit the Supreme Court's power, or to modify the Electoral College, or any other change to our political insitutions concened with elections. In addition, I have no idea what "most Americans" think about this court now as we approach two years later. But I do know that an insitution that I had had respect for throughout my life, our nation's highest court, now is a sham to me. Even when the court ruled in ways I didn't agree, thought was wrong, or just plain didn't like, that respect for the court itself remained. But after Bush v Gore, it's clear to me that the court is nothing more than a political hack shop -- made worse because so many of the so-called justices seemed absolutely determined to ignore the 100 million votes cast in this election and instead decided the presidency based on 9 single votes. In any other nation this would have been called a coup.
  
  Keith Clark
  citizen
  California USA

• Tuesday November 12, 2002 at 10:42 pm
  Liberty and Justice for all? The more MONEY you have, the more liberty and justice you get. We may be born equal but equality, liberty and justice end right there!
  
  David L. Sellars
  Washington, USA

• Saturday November 23, 2002 at 12:21 pm
  I find it interesting that the Left still clings to the comfortable myth that the Supreme Court "gave" the Presidency to Bush. Of the myriad county-by-county standards used, nearly all would have objectively edged the Florida election to Bush. The Supreme Court simply put an end to the willy-nilly, hodge-podge application of ever-shifting 'standards', none of which had been previously codified by the Florida legislature. If you wonder why there is no back-lash against the Court's decision in Bush v Gore, it's because the populace has the wisdom to see true justice when it rises above petty partisanship. The perspective of the last two years has made it clear that Bush should have won, and that Bush did in fact win.
  
  Charles Loy
  New York, USA

• Wednesday January 22, 2003 at 6:44 pm
  First, the vote was 7-2 regarding the Equal Protection Clause. It was 5-4 regarding whether to let the recount continue. Justices Souter and Breyer believed that the Florida Supreme Court had acted unconsitutionally, but they would have given Florida until December 18 to complete a manual recount. As for the Florida Supreme Court, that court was clearly acting in a partisan way. It simply was going to try its hardest to make Al Gore president. Even if the U.S. Supreme Court didn't get involved, the Florida Legislature was preparing to pass legislation awarding Florida's 25 Electoral Votes to Bush. So Bush would have won anyway. The Florida fiasco, together with the Senatorial switcharoo in New Jersey, show that the Democrats don't care about the law. They just want to win. What there angry about is that the U.S. Supreme Court had the unmitigated nerve to make them obey the Constitution.
  
  Stefan Privin
  New York, United States

• Thursday January 30, 2003 at 5:24 pm
  Those who think the U.S. Supreme Court picked the right winner anyway are mistaken. The Miami Herald's recount of the Florida vote showed that each Bush and Gore would have won depending on the standard used to count the votes. Ironically, Gore would have won if they used the more stringent standard Bush preferred, and Bush would have won if the less stringent standard that Gore preferred would have been used. Excerpt from Miami Herald writer Tom Fiedler's August 8, 2001 article in the Miami Herald on the Miami Herald's 2000 Presidential recount results: "But as Herald senior writer Martin Merzer put it on the first day of the package: 'The multiple layers of The Herald's findings allowed both parties to claim validation of their positions during the protracted election dispute.' How could that be? The Herald set out to answer a simple question: What would have happened had the Court allowed the recounts to go ahead? The assumption was to provide a range of results according to the various standards applied by different counties for tabulating these ballots. After months of work and some $450,000 in expenses, the banner headline in last Wednesday's paper declared: Review shows ballots say Bush. And the headline was absolutely accurate, sort of. If the review simply picked up where the recount had left off in December, George W. Bush actually added votes to his official victory under the most commonly used standards for counting damaged ballots (ironically, standards that his campaign opposed). PANDORA'S BOX Review showed George W. Bush won the Florida election, sort of. But -- and here's where Pandora's Box opened -- if the recount had been started from scratch in each of Florida's 67 counties, The Herald concluded `'Gore would be in the White House today'…" Source: http://www.philly.com/mld/miami/news/2070914.htm
  
  Ricardo Miranda
  Los Angeles, CA

• Thursday January 30, 2003 at 5:54 pm
  Attorney Robin Miller's analysis, "Supreme Mess" on the flaws and lack of merit of Bush's equal protection claim: "In its determination to anoint its favorite son, the Supreme Court has created, and then dived headlong into, a legal quagmire from which extrication of our judiciary may be impossible. Halting the recount ordered by Florida's highest court, the Supremes claimed to have detected multiple federal equal protection violations in the manner in which the recount was proceeding. This intrusion into state electoral proceedings was unprecedented; as Justice Stevens observed in dissent, the Court had 'never before called into question the substantive standard by which a State determines that a vote has been legally cast.' The Court's principal grievance was the Florida court's failure to specify so-called objective standards when the latter court empowered local canvassing boards to determine a voter's intent from punch-card ballots. The Court reasoned that this open-ended authority might lead to varying interpretations of identical punch-card ballots by disparate canvassing boards. Yet the possibility of human beings disagreeing on the interpretation of particular ballots exists whenever two or more counters or counting teams evaluate ballots under any standard lodging discretion in the counter. This would seem to include almost all of the manual electoral counts in this country. Are all these elections unconstitutional? Although our country's first presidential election was held in 1789, mechanical voting machines weren't introduced until 1892.[1] Until then, ballots were counted by hand in every election, and surely there was no voters' intent manual for counters to pore over. Were all these elections flawed? Almost all states ultimately rely on the 'intent of the voter,' and half have statutes expressly authorizing manual recounts, but less than a handful of the laws specify the objective standards demanded by the Supreme Court. Are all the other statutes unconstitutional?[2] The Court's main opinion attempts to deflect this criticism by limiting its holding to 'the special instance of a statewide recount under the authority of a single state judicial officer,' but these factual parameters are constitutionally insignificant. Are we really to believe that a different rule would apply where the count involved only half a state, rather than its entirety, or three judicial officers rather than one, or an initial count rather than a recount? Broadening our view of the electoral process, is it not also an equal protection violation, under the reasoning of the majority opinion, to require voters to use punch-card voting technology when it produces two and a half to five times the undervote resulting from optical scanner technology?[3] As Justice Breyer noted, voters arrive at the polls with an unequal chance that their vote will even be counted. Nor is the Court's reasoning rationally limited to the electoral arena. Change 'election' to 'trial' and 'canvassing board' to 'jury,' and the Court's opinion logically requires a jury to follow predetermined objective standards if it's asked to ascertain a criminal defendant's intent. Both a jury and a canvassing board examine the evidence--whether limited to a ballot or encompassing the results of a three-month trial--to assess a particular individual's intention. And we know that different juries, viewing the same ambiguous evidence, may well render conflicting decisions, setting one defendant free while sending another to jail for life. The Supreme Court's opinion is objectionable on so many grounds: The majority's deciding the presidency yet lacking the courage to sign their names to the Court's opinion. Chief Justice Rehnquist's abandonment of the role of consensus-builder in favor of authoring a separate opinion articulating an extreme position assented to by only his far-right soulmates Justices Scalia and Thomas. The majority's jettisoning its solicitude for states' rights so as to participate in what Justice Stevens called a 'federal assault on the Florida election procedures.' The preposterousness of the Court's declaration that time had run out after the Court itself had stayed the recount. But the real damage done--other than to the Court's reputation--is to equal protection jurisprudence, and to the legions of lower courts who will be required to sort out this mess." To read the footnotes, see: http://www.robincmiller.com/bg2.htm
  
  Ricardo Miranda
  Los Angeles, CA

• Thursday January 30, 2003 at 6:43 pm
  The U.S. Supreme Court committed a bloodless coup d'état. Besides the fact that Gore received a half million more votes than Bush throughout the country, the U.S Civil Rights Commission (http://www.usccr.gov/nwsrel/archives/2001/030901.htm) found that minority voters had their voting rights denied and according to the Miami Herald/USA Today recount report a "review of 171,908 ballots also reveals that voting mistakes by thousands of Democratic voters - errors that legally disqualified their ballots -probably cost former vice president Al Gore 15,000 to 25,000 votes. That's enough to have decisively won Florida and the White House. Gore's best chance to win was lost before the ballots were counted, the study shows. Voters' confusion with ballot instruction and design and voting machines appears to have changed the course of U.S. history." Source: http://www.usatoday.com/news/washington/recountindex.htm
  
  Ricardo Miranda
  Los Angeles, CA

• Tuesday June 17, 2003 at 11:50 pm
  Boy-oh-boy, Ricardo is some cry-baby.
  
  James Canton
  none
  New York, NY

• Thursday July 17, 2003 at 9:04 pm
  The US Supreme Court found Florida's court-ordered ballot recount unconstitutional (under the equal protection clause) by a vote of 7-2. The media, however, like to reference the 5-4 vote, which stopped the recount. In citing the 5-4 vote instead of the more applicable 7-2 shows undue bias on the media's part. As a law professor of 35+ years, it astounds me how Justices Souter and Breyer could vote with Bush in saying the Florida Supreme Court-ordered ballot recount was unconstitutional, and yet, maintain that the recount should be allowed to CONTINUE until December 18th! I am at a loss to explain this foolishness, except to say that these two votes were cast for partisan politcal purposes, of which the Supreme Court should have no part.
  
  Dr. Elijah Downripple
  Princeton Law Professor (retired)
  New Jersey, USA

• Thursday July 17, 2003 at 9:05 pm
  The US Supreme Court found Florida's court-ordered ballot recount unconstitutional (under the equal protection clause) by a vote of 7-2. The media, however, like to reference the 5-4 vote, which stopped the recount. In citing the 5-4 vote instead of the more applicable 7-2 shows undue bias on the media's part. As a law professor of 35+ years, it astounds me how Justices Souter and Breyer could vote with Bush in saying the Florida Supreme Court-ordered ballot recount was unconstitutional, and yet, maintain that the recount should be allowed to CONTINUE until December 18th! I am at a loss to explain this foolishness, except to say that these two votes were cast for partisan politcal purposes, of which the Supreme Court should have no part.
  
  Dr. Elijah Downripple
  Princeton Law Professor (retired)
  New Jersey, USA

• Friday October 24, 2003 at 10:30 am
  I still don't see anybody talking about the fact THAT SCALIA's son was on bush's legal team, in any court of the land that initself is grounds for excusing yourself from sitting on the bench durring any trial. Why am I the only one to see this?
  
  Mike Brinson
  human
  Oregon/Usa

• Friday October 24, 2003 at 10:31 am
  I still don't see anybody talking about the fact THAT SCALIA's son was on bush's legal team, in any court of the land that initself is grounds for excusing yourself from sitting on the bench durring any trial. Why am I the only one to see this?
  
  Mike Brinson
  human
  Oregon/Usa

• Friday October 24, 2003 at 10:34 am
  I still don't see anybody talking about the fact THAT SCALIA's son was on bush's legal team, in any court of the land that initself is grounds for excusing yourself from sitting on the bench durring any trial. Why am I the only one to see this?
  
  Mike Brinson
  human
  Oregon/Usa

• Saturday November 15, 2003 at 3:09 pm
  I don't know who did the poll referenced in this article - but they sure didn't talk to anyone I know. There is a discussion to this day - about the fact that Bush did not win this election - he was handed it by the Supreme Court, in what was clearly a Political Ruse. Thank you Professioner Downripple, for that enlightenment.
  
  Pam Bergren
  Hartford, CT

• Wednesday February 04, 2004 at 2:31 pm
  I am shocked at how the U.S. Supreme Court has buckled under to the Chaney/Bush Political Machine. I don’t know if the Court is succumbing to the extreme wealth of Cheney’s Halliburton money magnet. Or maybe it is Cheney and Scalia’s close relationship. I thought the Justices were paid enough to not be bought off. Some people never have enough money. We know that Chaney and Scalia are very close. We know they duck hunt together. God knows what else. Chaney is supposed to be disconnected from his Halliburton connections while he is serving as Vice President. Evidence shows that he is still the shadow CEO of his Halliburton. If Cheney is not the shadow CEO of Halliburton, why is he shouting that Halliburton is "unfairly maligned" when the company repeatedly cheated U.S. troops and taxpayers. There is evidence of Halliburton cheating the American taxpayer out of millions of dollars, it's alarming to see Dick Cheney jump to the defense of Halliburton. Maybe he plans to punish his former firm with another no bid contract for millions more of the taxpayers dollars. No wonder that after three years of the Bush economy has only a select few Americans smiling. And, they all work for Halliburton or are on the Supreme Court. What connection? The Supreme Court appointed Bush President, even though Al Gore had the popular vote of the American people. The Vice Presidency to Dick Cheney came with the appointment. Now here is one of many pay offs. The Supreme Court will take up Cheney's appeal in a case that involves his refusal to disclose the identities of members of his energy task force. Could that identify Halliburton. When Professor William G. Ross says “Opinion surveys last summer indicated that Bush v. Gore had not appreciably affected overall public opinion of the Court.” He lives in a dream world influence by the Cheney/Bush political machine. The reason more people did not voice their complaints, 911. The dissatisfaction of the American people for Scalia’s Supreme Court is alive and well.
  
  Clive Meairs
  Retired
  Shell Knob Missouri

• Wednesday February 04, 2004 at 2:34 pm
  I am shocked at how the U.S. Supreme Court has buckled under to the Chaney/Bush Political Machine. I don’t know if the Court is succumbing to the extreme wealth of Cheney’s Halliburton money magnet. Or maybe it is Cheney and Scalia’s close relationship. I thought the Justices were paid enough to not be bought off. Some people never have enough money. We know that Chaney and Scalia are very close. We know they duck hunt together. God knows what else. Chaney is supposed to be disconnected from his Halliburton connections while he is serving as Vice President. Evidence shows that he is still the shadow CEO of his Halliburton. If Cheney is not the shadow CEO of Halliburton, why is he shouting that Halliburton is "unfairly maligned" when the company repeatedly cheated U.S. troops and taxpayers. There is evidence of Halliburton cheating the American taxpayer out of millions of dollars, it's alarming to see Dick Cheney jump to the defense of Halliburton. Maybe he plans to punish his former firm with another no bid contract for millions more of the taxpayers dollars. No wonder that after three years of the Bush economy has only a select few Americans smiling. And, they all work for Halliburton or are on the Supreme Court. What connection? The Supreme Court appointed Bush President, even though Al Gore had the popular vote of the American people. The Vice Presidency to Dick Cheney came with the appointment. Now here is one of many pay offs. The Supreme Court will take up Cheney's appeal in a case that involves his refusal to disclose the identities of members of his energy task force. Could that identify Halliburton. When Professor William G. Ross says “Opinion surveys last summer indicated that Bush v. Gore had not appreciably affected overall public opinion of the Court.” He lives in a dream world influence by the Cheney/Bush political machine. The reason more people did not voice their complaints, 911. The dissatisfaction of the American people for Scalia’s Supreme Court is alive and well.
  
  Clive Meairs
  Retired
  Shell Knob Missouri

• Friday February 20, 2004 at 6:28 pm
  I agree that the decision was the intial step in a coup, and the reason there was no movement against it is because the person who should have led that revolt--Gore--is actually on the same team--the corporate plutocracy team. "As a law professor of 35+ years, it astounds me how Justices Souter and Breyer could vote with Bush in saying the Florida Supreme Court-ordered ballot recount was unconstitutional, and yet, maintain that the recount should be allowed to CONTINUE until December 18th! I am at a loss to explain this foolishness,..." (thank you Dr. Downripple) So now we have the duck hunt story starring Cheney and Scalia. This is a breach of ethics that cuts down to the foundation of western civilization (and as someone above noted, this is not the first instance of such with this court: Scalia's son representing Bush in Bush v. Gore). To condone or rationalize such is to define fascism. It is almost as if this story is a psyop to inform the electorate that there is no longer such a thing--only imminent corporate serfdom. If this is close to the truth, America has one chance left to redirect the course of the nation, and that would be a constitutional amendment on electoral reform (outlawing proprietary source code in electronic voting machines the primary issue). Since it appears that congress is part of this coup, and corruption has become institutionalized, we cannot count on them to propose the amedment to the fifty states. There is only one other way to propose amendments to the states. No matter what administration is elected this November, if fundamental change does not occur (and odds are it won't), we will descend on our state capitols and demand our legislatures fire off a petition for America's second Constitutional Convention. If you are interested in finding out more and/or may be willing to lend legal advice please contact our group:
  
  CC2.com
  CC2
  California

• Thursday March 04, 2004 at 2:38 pm
  One reason why electoral college won't ever be changed enough to prevent the popular vote loser from winning and a separate argument why the keeping the electoral college is essential: 1) The electoral college, in its present form, was designed by our founders to give smaller states a greater impact than its proportion of population. Wyoming has only 0.17% of the US population, but because of the 3 electoral votes it gets (the minimum for any state since), it has 0.56% of the electors, or three times what it deserves by strict proportions. Conversely, California's 55 electoral votes gives it about 10.2% of the total, even though it has more than 12% of the population, and one could argue that by proportion, it deserves 10 more electors. You could say the voters in Wyoming have 300% their due, while the voters in California have only 85% of their due. Culmulatively, this is why its possible, in close elections for the popular vote and electoral vote winners to be different. This was anticipated and intended by the founders, as part of a great compromise in formulating the Congress. Today we can debate forever if this formulation for either Congress or the electoral college is desirable or should be changed. The simple truth is - it's unlikely that it can be changed, since the smaller states will lose an advantage, and since their are more smaller states than larger states - any amendment giving up that advantage is unlikely to be approved by the senate and is unlikely to be approved by the required super-majority of states. The most likely, practical reform of the Electoral college is to require states to appoint or elect electors by congressional district (as in only two states now), instead of a winner takes all as is the case in most states. (and perhaps two electors would be based on the state-wide vote. like the senators). This change, however will not change the advantage the the small states enjoy, so it would not elimante the possibilty of the popular vote winner losing the electoral college. In some cases, it might even make that more likely. 2) Keeping the electoral college is essential in order to prevent the 2000 Florida "tie" controversy from becoming a national "tie" controversy, with even greater confusion. Suppose for example, assume the popular vote was 50,000,001 to 50,000,000 in 2000, and there was no electoral college because the popular vote governed. In that case, every state would be in play. Even states that one candidate won by a large margin would be in play, since while a recount in that state wouldn't change who won the state, it could swing the national popular vote the other way. We could have a crisis in every state, with whichever party was in control trying to gain a few votes. The electoral college acts as a filter to eliminate all this noise. Most states will be decided by large enough margins that recounts wouldn't affect who won the states electoral votes. Those results will be clear. Usually there will be only a few states that would be close enough that a recount might make the difference. In 2000, there were several, but only Florida mattered. After Bush won the first count in Florida by the smallest of margins, the Democrats saw an oppotunity to try to change the result. There were at least two other states which Gore won by a small margin, but the Republicans chose not to contest, since even if they had reversed those, Bush would have lost the election if he lost Florida. So the only state that matterred to both sides was Florida, and all the attention and controversy was concentrated in one place. At least that was manageable and understandable for everyone, no matter which side you were on. Back to the other scenario - a tied national popular vote - every state would be in play, even those that were won by either candidate by a large plurality. A recount would be everywhere, and the controversy never ending and almost unsolvable. With the electoral college as a filter, most states (or districts) would not be in play, and the controversy would be limited to a few places that might change the result. The places where decisions needed to be made would be very clear. A lot of fraud scenarios are avoided with the electoral college filter. For example, say one candidate one California by 1,000,000 votes, but had the ability to affect the count by another 500,000. With the electoral college, (s)he would gain no advantage. With the direct popular vote, (s)he would want the extra 500,000 at any cost in a close election. Which scenario would you prefer?
  
  ted dobracki
  PA