THE SUPREME 5: Rehnquist, Scalia, O'Connor, Thomas, Kennedy: jokers
(CH, L, CW) (what do these signs mean?)

The radical right claims to venerate the Constitution and the Founders. Yet little could fly more directly in the face of the Founders' values than the Supreme Court picking the person to serve as President. The reason is simple. The Supreme Court is the farthest from popular control of any government institution. Justices are appointed for life and have extraordinary power. While most of us agree that we want a referee on constitutional questions who doesn't need to read the popular polls, we also do not want that referee to become a power in and unto themselves. They are the usual court of last resort for a democratic republic, not an aristocracy or theocracy.

This means that justices MUST be appointed by representatives of the people. For them to pick the person charged with naming them to office is a serious and disturbing violation of the separation of powers. They become even more free from popular control.

That the man who currently sits in the Oval Office so consistently seeks to appoint extreme ideologues, justices whose sense of democratic values is as weak as their sense of basic decency, demonstrates how serious this matter is. Read what we have discovered about Kuhl, or Pryor or Owen and ask yourself if you would feel good having such a person determining how the law applies to yourself. Unless you are a big corporation or perhaps a fundamentalist church, you should be concerned, very concerned.

That such a man might be able to appoint new Supreme Court justices in the image of his two favorites: Scalia and Thomas says even more about the corrupt are in harmony with the American people or most American jurisprudence. That their votes enabled them to pick the man who might name their successors indicates how far from the Founders' vision these so-called advocates of "strict construction" have wandered. Like Fundamentalist Christians interpreting the Bible, they read into the Constitution what they want to find, and then say it is the word of our Founders. But as Bruce Ackerman wisely says, " In our democracy, there is one basic check on a runaway Court: presidential elections. And a majority of the justices have conspired to eliminate this check."

See:
http://www.prospect.org/print/V12/3/ackerman-b.html

There was no need for the court to intervene. The Florida Supreme Court had ruled. David Strauss, Harry N. Wyatt Professor of Law at the University of Chicago, in a careful examination of the case, wrote: "The Florida Supreme Court decision that was overturned in Bush v. Gore was consistent with the plain language of the principal statute involved the Florida statute governing contests of election certifications and neither the concurring opinion nor, as far as I am aware, anyone else, has seriously contended otherwise." For Republicans, the Florida Legislature, in a foretaste of later extreme right politics, was threatening to unilaterally give the state to Bush. Both were in keeping with what the Constitution allowed. Neither established the precedent of the Supreme Court picking its own successors.

Strauss's essay is at:
http://press-pubs.uchicago.edu/sunstein/chapter9.html

Further, the lawless character of the Supreme Court's ruling is demonstrated in the majority justices claiming, "our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities," the court explicitly abandoned law by precedent in favor of law by judicial decree. If an honest justice had asked, "well then, what should we do?" The answer most in keeping with the Founders would be "Stay out of it."

As Calpundit wisely noted

"The Supreme Court's egregious use of the equal protection argument in Bush v. Gore, and that fact that the majority obviously knew it was egregious since they tried to prevent anyone else from ever using it again, is the most obviously cynical part of the entire opinion."

See:
http://www.calpundit.com/ for September 18, 2003

More? Go to:

http://press-pubs.uchicago.edu/sunstein/chapter9.html
http://www.ualr.edu/~appj/maltese.html

See also:
Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 (Oxford University Press, 2001)