I M P R E S S I O N S

Last Chance for Redemption

by Steven C. Day

11.27.01 | The media pundits insist that everyone in the country, aside from a few partisan extremists, has ‘moved on” beyond the 2000 presidential election. From the tabloids to The Times, they all recite the same verse, something like:

About this business of Bush v. Gore,
rest assured that we know the score.
While a few Democrats may still be sore,
to the rest of us it’s become a bore.

True, democracy has a noble feel,
but frankly it’s got no sex appeal.
So give us Condit, give us war,
because counting votes we now abhor.

But notwithstanding this conventional wisdom, I will guarantee you that there are at least five souls out there, aside from angry Democrats, who remain haunted by Bush v. Gore. Their names: William Rehnquist, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Sandra Day O”Connor.

Why, you may reasonably ask, would the five Supreme Court justices who joined in the majority opinion still be sweating the decision nearly a year later? They don’t, after all, stand a chance of being impeached or otherwise legally held accountable. So what do they care if a bunch of law professors and disgruntled Democrats continue to wallop them on this issue? The answer is all about history.

Supreme Court justices, much like presidents, worry obsessively over how they will be regarded by history. And these five jurists, being extremely bright people, must know that as matters now stand they will be remembered for only one thing: as the bunch who spiked a presidential election.

And they must also know that the media consortium’s “recount” isn’t going to save their bacon. Even if history accepts the consortium’s dubious conclusion that a limited recount of just the undervotes would have left Bush in the lead in Florida (while a full recount of all votes, including overvotes, would have given the election to Gore), it will still condemn the Bush v. Gore decision and the justices who signed it.

If you doubt this, then judge for yourself the strength of the argument now being offered by the Court’s apologists, which boils down to the following: “OK, maybe it’s true that the five justices reached an intellectually indefensible decision — totally inconsistent with the Court’s prior holdings and with their own judicial philosophies — in order to be sure that the candidate they favored would win the presidency. However, because it later turned out that this manipulation may have been unnecessary, and that their man might have survived a recount even without their help, they actually did nothing wrong.”

Right, guys: Try selling that one to history.

Face it, these five justices are toast unless they have the wisdom to grab hold of one last opportunity for redemption that fate has now handed them. And the good news is that from their standpoint the ticket price for redemption is remarkably small. All they need to substantially improve their standing is to do their job: Protect the U.S. Constitution.

This opportunity exists, of course, because of the war on terrorism. Ever since the Sept. 11 attacks, the Bush administration has been working overtime, pushing policies that restrict civil liberties and expand governmental secrecy within the United States. While attacks on civil liberties during wartime have been common throughout American history, the zeal Bush & Co. is showing is staggering.

The first blow came with the adoption of a 342-page monstrosity bearing the aptly Orwellian title of USA Patriot Act. Among its more troubling aspects are provisions expanding the federal government’s power to snoop into the private affairs of Americans through review of financial records, Internet spying, secret searches and roving wiretaps. Many other parts of the statute are also of great concern, including a provision authorizing the government to detain legal aliens for up to seven days without charging them with any crime.

As bad as the Patriot Act is, however, Congress did at least temper a few of the more draconian requests made by the Bush administration. But Bush has apparently decided to dispense with such “interference” in the future. He is now largely bypassing Congress when pursuing policies that undercut personal liberties and reduce the openness of government, acting, instead, pursuant to a series of constitutionally questionable executive orders.

The litany of executive actions taken by Bush, without even the pretext of congressional authorization, is staggering: His administration has detained more than 1,000 foreign nationals living in the United States; declared that the government will begin routinely listening in on conversations between certain suspected terrorists and their lawyers; ordered racial profiling on a massive scale involving law enforcement interviews of Arab and Muslim men; and clamped down dramatically on public access to governmental information, including a great deal of information that has absolutely nothing to do with terrorism.

Then, of course, there’s the granddaddy of all recent attacks on civil liberties: Bush’s executive order establishing special military tribunals to conduct trials of non citizens suspected of terrorism. (Let’s just call them kangaroo courts or KCs for short.) Under the terms of the order, Bush alone will decide whether a defendant is prosecuted under the traditional rules of criminal procedure or by way of a KC — where the verdict will be rendered not by a jury, but by a commission made up of military officers hand picked by the government. These trials may be held in secret, the normal rules of evidence will not apply, proof beyond a reasonable doubt probably won’t be required and convictions will be permitted based upon a two-thirds rather than a unanimous vote of the tribunal.

Oh, and by the way, no appeal will be allowed, other than to Bush himself. And yes, these KCs will be authorized to impose the death penalty, again on the basis of a two-thirds vote.

It’s hard to imagine many other things America could do that would constitute a greater betrayal of our core principles than this. It’s also an extraordinarily ethnocentric action. Just think what the American response would be if some other nation started putting our citizens on trial in this sort of kangaroo court, yet we think it’s perfectly proper for us to do so with their citizens.

Can we count on Congress to stop these assaults by the executive branch against our personal freedoms? Don’t bet your plane ticket to Canada on it. While some members of Congress have expressed grave misgivings, there isn’t a prayer that Congress will actually overrule any of these executive orders. The political risk of appearing to interfere with the “war effort” is viewed as just too great. It would seem that the book Profiles in Courage has gone out of print, at least in Washington, D.C.

Thus, it is increasingly clear that the final stand in the defense of our rapidly vanishing personal freedoms will have to be made before the U.S. Supreme Court. This will occur when, in the normal course of judicial process, legal issues involving these various outrages make their way to the High Court. There are plenty of reasons why this prospect should scare the hell out of anyone who loves freedom. The Rehnquist Court has been no friend to civil liberties. While there have been a few noteworthy exceptions, on the whole its decisions have strongly favored the interests of law enforcement over the rights of individuals.

And there are already disquieting indications of where some of the justices may stand on the current issues. Justice Sandra Day O”Connor wasted no time going on record supporting reductions in freedom as part of the war on terrorism. During a speech in late September she predicted that Americans are “likely to experience more restrictions on our personal freedom than has ever been the case in our country.” Add to that recent comments by Kenneth Starr, the well-connected former special prosecutor, who said he believes that at least five of the justices are prepared to accept significant restrictions on civil liberties, and that plane ticket to Canada is starting to look better and better.

Yet, all may not be lost. While it may be a long shot, the possibility does exist that the Court will surprise us. Remember, we don’t need all five members of the Bush v. Gore majority to abandon the dark side of the force — we just need one or two of them to make a switch. And that has happened before.

The year was 1937 and America was still struggling to come out of the Great Depression. President Franklin Roosevelt, who had been reelected the year before by an overwhelming mandate, was engaged in a bitter fight with the Supreme Court over the Court’s handling of New Deal legislation, much of which had been declared unconstitutional. Roosevelt had just recently proposed his controversial “court packing” plan, which would have permitted him to appoint six new justices, more than enough to assure that future New Deal legislation would be upheld.

Then in March of 1937, in the case of West Coast Hotel v. Parrish (1937), the Supreme Court suddenly changed course and upheld a minimum wage statute that was very similar to one it had previously declared unconstitutional. The “court packing” plan quickly ran out of steam. History was changed because just one member of the Court, Justice Roberts, changed his vote in what has since been referred to as ‘the switch in time that saved nine.”

Could this happen again now? At first glance, it seems unlikely. Certainly the decision in Bush v. Gore has produced nothing close to the level of public anger generated by the New Deal cases (which is not to say that it shouldn’t have, as I have grumbled before). Still, there is that pesky business of the justices’ tattered reputations. Most of the justices in the Bush v. Gore majority are getting old. Their response to civil liberties issues raised by the war on terrorism may well be the last major component to their joint legacy.

What will that legacy consist of? Will it represent merely one more judicial default to wartime fears, one more betrayal of principle? Or will one or more of these five justices choose, instead, to create the legacy of a new beginning, by joining with the more “liberal” members of the Court in striking down the most oppressive features of both the Patriot Act and Bush’s executive orders?

Such a new beginning would establish, as a principle of constitutional law, that while security in time of war is paramount, it can never justify America disgracing its greatness by abandoning its principles, as it did when it punished wartime dissent in World War I and when it persecuted people based upon their place of their national origin in World War II. It would also establish for all time that America’s freedoms are never for sale, even when the offering price is the promise of a safer life during troubled times.

Now that would be a legacy for the ages.

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Steven C. Day is an attorney practicing in Wichita, Kansas. His previous columns can be found here.