Saturday, October 27, 2007

Supreme Injustice

Alan Dershowitz is pissed. You should be, too, according to his book "Supreme Injustice: How the High Court Hijacked Election 2000". In it, he convincingly argues that the Supreme Court ruled in a partisan manner that violated judicial ethic.

The book is essentially divided into two sections. First, he describes the legal decisions that took place amidst the election chaos in Florida at the time. Basically, the Supreme Court of Florida made a decision to allow a recount of the votes in specific counties. This verdict was controversial because there existed conflicting legislature with regards to Florida elections. One statute said there was a deadline for the elections, and another statute stated that any ballots with clear "intent" to vote needed to be counted. The Florida Court decided to give greater emphasis to the right to vote, and extended the deadline.

Here the Supreme Court enters the picture, claiming that the Florida court overstepped it's authority by interfering with what was a "political" matter. The recount is allowed to begin again, only to later be declared unconstitutional by the Supreme Court. There wasn't an objective manner of tabulating the votes and therefore, according to the court, there was not "equal protection under the law". There ends the election, with George Bush becoming the President of the United States of America.

At first blush, there seems to be confusion, sure, but nothing improper. The second part of the book argues that these decisions, read with an understanding of precedent and judicial philosophy, were indeed misguided, if not outright malicious. The concern here is, first, the Court's decision to allow the hearing of the case in the first place. The Court's conservative justices had consistently argued for the importance of State's sovereignty in anything not specifically Federal. This was perhaps THE major platform for Scalia and Thomas' attack on liberal "judicial activism". Second, these same justices were consistently very literal in their treatment of "equal protection" cases. All the justices in the majority had written opinions emphasizing that discrimination must be shown to be intentional, and that there must exist a clear victim in order for the court to intervene. Somehow, without either of these supposedly necessary conditions, the Court shed it's espoused judicial restraint and decided our national election.

The sanctity of the Supreme Court has shielded it from the criticism that our elected bodies have grown accustomed to. Hershowitz takes the gloves off in this book and says that these justices have tarnished that hallowed reputation. Towards the end, he provides an opinion on an alternative method of selecting justices. Because today the process is so political, perhaps it is inevitable that they are chosen more for than ideology than their qualifications.

I really liked this book. Although emotionally charged, the writing is thoughtful. I perhaps give a greater benefit of the doubt to our Supreme Court justices, but their inconsistencies in this case merit significant discussion. The repercussions of those fateful 14 days have and will continue to affect our nation. The Supreme Court became more conservative with W's appointment of two new justices. Perhaps the war in Iraq would never have occurred. Truly a fascinating moment in history to learn about.

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