Say It Ain’t So, Antonin!

by Steven C. Day

9.7.01 |  I’m sorry, but I can’t. 

No matter how many wise and kindly media pundits tell me that it’s time to stop griping about the Supreme Court’s decision in Bush v. Gore — time, as they say, to “get over it” and to ‘move on” — somehow I just can’t do it. And neither, it seems, can a lot of other people.

How else can we explain the commercial success of two stronger-than-genetically-enhanced-horse-radish-books, one by Alan Dershowitz and the other by Vincent Bugliosi, lambasting the decision? And how else to explain the audacity of the Oregon Democratic Party in voting to recommend that Congress institute impeachment proceedings against the five justices who joined in the majority opinion? Plainly, there are a lot of folks out there who not only have not moved on, they haven’t yet started to pack.

So why such trouble letting go? Let me offer an answer just for myself.

To be betrayed by anyone is painful, but to be betrayed by your heroes is so much worse. A famous example involves the 1919 Chicago White Sox team that threw the World Series to the Cincinnati Reds, after taking bribes from gamblers. Legend has it that as “Shoeless’ Joe Jackson, one of the accused players, was leaving the courthouse, a young boy cried out in anguish from the crowd, “Say it ain’t so, Joe!” While history suggests that much of the blame for this “Black Sox” scandal rests with the stingy and abusive team owner, only one thing mattered to that young boy: His heroes had betrayed him.

The way I felt on Dec. 9, the day the Supreme Court entered the stay order which ended the vote counting in Florida, I could almost have been that boy. The only difference is that I would have been standing outside the Supreme Court building, shouting to one of the five justices who voted for the stay, perhaps Antonin Scalia. “Say it ain’t so, Antonin! Please, say it ain’t so!”

Those five justices didn’t just begin the process of subverting the presidential election on that sad winter day, they also betrayed my lifelong reverence for the U.S. Supreme Court.

As I have written before, I reached the age of political awareness in the late 1960s, during the glory days of the Warren Court. The young whippersnappers among us have never experienced anything quite like it — a Supreme Court that actually championed the rights of the little guy. 

The list of the Court’s decisions is a catalog of social progress: Brown v. Topeka Board of Education (1954) struck down the "separate but equal" doctrine for public education; Gideon v. Wainwright (1963) affirmed the right to appointed counsel; Baker v. Carr (1962) said that the federal courts had jurisdiction to consider constitutional challenges to redistricting plans; and Miranda v. Arizona (1966) mandated minimum procedural safeguards during police questioning, the so-called Miranda warnings. And that’s just a sample.

Growing up in these times, it’s not surprising, I suppose, that Supreme Court justices were among my heroes. William Brennan, William O. Douglas, Thurgood Marshall, Hugo Black, Earl Warren himself — they were bigger than life.

They were, alas, also quite mortal. Year by year, as they were replaced by new justices (who were appointed by mostly Republican presidents) the Supreme Court went through a metamorphosis, becoming a much more conservative, even reactionary, shadow of its former self. But despite all this, the institution remained sacred to me. It was still a place of greatness, a place where legal giants walk. It sounds so naive now, but in the days leading up to the court’s infamous stay order, I was confident that the justices would act honorably.  

“Don’t worry,” I told Democratic friends who were concerned that the largely Republican Court might seize the opportunity to put Bush into office. “They would never put the reputation of the Court into that kind of danger.” 

I was especially confident of Chief Justice William Rehnquist, despite his conservative credentials. “It is the first duty of any chief justice to protect his Court,” I told my friends, quoting an old maxim. “Rehnquist, as a student of history, knows this,” I continued. 

And I still can’t believe I was wrong. Nine full months have passed since Bush v. Gore was decided, but I still shake my head every time I think about the case. The decision was so unbelievably wrong, so mind-numbingly bad, so far off-base, in fact, that the standard analogies just don’t cut it. It isn’t enough to compare it to a bad call that decides the seventh game of the World Series. This is more like an umpire deciding the World Series by awarding one of the teams six points for a touchdown.

The Court’s betrayal of American democracy was clearly demonstrated. Even the most partisan of commentators, the ones who somehow manage to keep a straight face while defending the rest of the majority’s actions, almost always throw in the towel when they get to the stay. “In retrospect, granting the stay was probably a mistake,” they will mumble. They have no choice. There is simply no way it can be defended on the basis of law.

Under the law, a pre-hearing stay may only be issued when it is necessary to prevent “irreparable harm.” As any trial lawyer can tell you, this is an extremely tough showing to make. It is not enough, under this standard, to merely prove that the party seeking relief is about to suffer grievous harm; to receive a stay, a party must go one step further and also establish that there is no way the Court can later remedy this harm, after the opposing party has received due process.

It is inconceivable that Bush could ever have met this standard. The simple truth is that allowing the vote counting to go forward in Florida would have caused Bush no legal harm whatsoever, let alone irreparable harm. Legal harm could only have occurred later, if and when the newly counted votes were added to the official tally. However, the Supreme Court could easily have prevented that from happening if, after a full hearing, they ruled in Bush’s favor by simply ordering the Florida Secretary of State not to include the newly counted votes (one suspects she wouldn’t have complained).

These five Supreme Court justices are among the best and the brightest legal minds in the country. They knew better then to issue the stay. To argue that they made an honest mistake is sort of like suggesting that Tiger Woods could accidentally swing a driver full force while attempting a 30-foot approach shot. There are some mistakes the very best simply don’t make.

This was, clearly, one of the worst decisions the Supreme Court has ever made. This was a coup d” etat undertaken in the name of constitutional process. These five extraordinarily conservative Republican justices saw a golden opportunity to make certain that ‘their guy” became the next president, and they grabbed it. And because of that, millions of Americans, myself included, will never again look at the Supreme Court in quite the same way.

Shoeless Joe Jackson paid dearly for his mistakes. He was kicked out of baseball for life. Even today, well over 80 years later, he remains ineligible for the Hall of Fame. That was the price he paid for allegedly throwing a baseball game. So what’s the price for subverting a presidential election?

Thus far, at least, it appears to carry no penalty at all. George W. Bush is happily ensconced in the White House (when he’s not on vacation), while Al Gore sleeps with the political fishes. Scalia and company remain on the Supreme Court, causing more mischief every day. Meanwhile, more and more of their Federalist Society buddies are being appointed to the federal bench, thanks to the generosity of Bush. No doubt about it, subverting a presidential election is starting to look like "the perfect crime."

So why haven’t I moved on yet? Let’s just say I’m waiting for justice. True, it may be a long time in coming. But that’s OK. I’m not going anywhere.

Enter the Pop Forum
Have you accepted George W. Bush as your president?

Related Sites
Steven Day isn’t suffering alone. There are Web sites about "getting over" the election, including goremajority.net. A lively site is democrats.com, where activists refer to themselves as "aggressive progressives."
"Gore is still popular with some rank-and-file Democrats seeking revenge in 2004, and the guy may end up with the presidential nomination again. But this sequel ought to be stopped before it gets too far into production," David Corn writes this month in The Nation.
Last year, before the election, Bruce Shapiro wrote a piece in Salon warning voters that the greatest difference between Gore and Bush may be their appointments to the Supreme Court.