The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our Presidentby Vincent Bugliosi
During the course of American history, wrongful events have occurred and certain Americans have stood up and spoken out against these wrongs: Tom Paine, Edward R. Murrow, Daniel Ellsberg. Vincent Bugliosi takes his place in this special pantheon of patriots with his powerful, brilliant, and courageous expose of crime by the highest court in the land. When an… See more details below
During the course of American history, wrongful events have occurred and certain Americans have stood up and spoken out against these wrongs: Tom Paine, Edward R. Murrow, Daniel Ellsberg. Vincent Bugliosi takes his place in this special pantheon of patriots with his powerful, brilliant, and courageous expose of crime by the highest court in the land. When an article he wrote on this topic appeared in The Nation magazine in February 2001, it drew the largest outpouring of letters and e-mail in the magazine's 136-year history, tapping a deep reservoir of outrage. The original article is now expanded, amended, and backed by amplifications, endnotes, and the relevant Supreme Court documents.
Read an Excerpt
CALL IT TREASON
IN THE DECEMBER 12 ruling by the U.S. Supreme Court handing the election to George Bush, the Court committed the unpardonable sin of being a knowing surrogate for the Republican Party instead of being an impartial arbiter of the law. If you doubt this, try to imagine Al Gore's and George Bush's roles being reversed and ask yourself if you can conceive of Justice Antonin Scalia and his four conservative brethren issuing an emergency order on December 9 stopping the counting of ballots (at a time when Gore's lead had shrunk to 154 votes) on the grounds that if it continued, Gore could suffer "irreparable harm," and then subsequently, on December 12, bequeathing the election to Gore on equal protection grounds. If you can, then I suppose you can also imagine seeing a man jumping away from his own shadow, Frenchmen no longer drinking wine.
From the beginning, Bush desperately sought, as it were, to prevent the opening of the door, the looking into the boxunmistakable signs that he feared the truth. In a nation that prides itself on openness, instead of the Supreme Court doing everything within its power to find a legal way to open the door and box, they did the precise opposite in grasping, stretching and searching mightily for a way, any way at all, to aid their choice for president, Bush, in the suppression of the truth, finally settling, in their judicial coup d'état, on the untenable argument that there was a violation of the Fourteenth Amendment'sequal protection clausethe Court asserting that because of the various standards of determining the voter's intent in the Florida counties, voters were treated unequally, since a vote disqualified in one county (the so-called undervotes, which the voting machines did not pick up) may have been counted in another county, and vice versa. Accordingly, the Court reversed the Florida Supreme Court's order that the undervotes be counted, effectively delivering the presidency to Bush.
Now, in the equal protection cases I've seen, the aggrieved party, the one who is being harmed and discriminated against, almost invariably brings the action. But no Florida voter I'm aware of brought any action under the equal protection clause claiming he was disenfranchised because of the different standards being employed. What happened here is that Bush leaped in and tried to profit from a hypothetical wrong inflicted on someone else. Even assuming Bush had this right, the very core of his petition to the Court was that he himself would be harmed by these different standards. But would he have? If we're to be governed by common sense, the answer is no. The reason is that just as with flipping a coin you end up in rather short order with as many heads as tails, there would be a "wash" here for both sides, i.e., there is no reason to believe that there wouldn't be just as many Bush as Gore votes that would be counted in one county yet disqualified in the next. (Even if we were to assume, for the sake of argument, that the wash wouldn't end up exactly, 100 percent even, we'd still be dealing with the rule of de minimis non curat lexthe law does not concern itself with trifling matters.) So what harm to Bush was the Court so passionately trying to prevent by its ruling other than the real one: that he would be harmed by the truth as elicited from a full counting of the undervotes?
And if the Courts five-member majority was concerned not about Bush but the voters themselves, as they fervently claimed to be, then under what conceivable theory would they, in effect, tell these voters, "We're so concerned that some of you undervoters may lose your vote under the different Florida county standards that we're going to solve the problem by making sure that none of you undervoters have your votes counted"? Isn't this exactly what the Court did?
Gore's lawyer, David Boies, never argued either of the above points to the Court. Also, since Boies already knew (from language in the December 9 emergency order of the Court) that Justice Scalia, the Court's right-wing ideologue, his Pavlovian puppet, Clarence Thomas, who doesn't even try to create the impression that he's thinking; and three other conservatives on the Court (William Rehnquist, Sandra Day O'Connor and Anthony Kennedy) intended to deodorize their foul intent by hanging their hat on the anemic equal protection argument, wouldn't you think that he and his people would have come up with at least three or four strong arguments to expose it for what it wasa legal gimmick that the brazen, shameless majority intended to invoke to perpetrate a judicial hijacking in broad daylight? And made sure that he got into the record of his oral argument all of these points? Yet, remarkably, Boies only managed to make one good equal protection argument, and that one near the very end of his presentation, and then only because Justice Rehnquist (not at Boies's request, I might add) granted him an extra two minutes. If Rehnquist hadn't given him the additional two minutes, Boies would have sat down without getting even one good equal protection argument into the record.
This was Boies's belated argument: "Any differences as to how this standard [to determine voter intent] is interpreted have a lot less significance in terms of what votes are counted or not counted than simply the differences in machines that exist throughout the counties of Florida." A more powerful way to make Boies's argument would have been to point out to the Court the reductio ad absurdum of the equal protection argument. If none of the undervotes were counted because of the various standards to count them, then to be completely consistent the Court would have had no choice but to invalidate the entire Florida election, since there is no question that votes lost in some counties because of the method of voting would have been recorded in others utilizing a different method. How would the conservative majority have gotten around that argument without buckling on the counting of the undervotes? Of course, advice after a mistake is like medicine after death. And as we shall see, no matter what Boies argued, the five conservative Justices had already made up their minds. But it would have been delightful to see how these Justices, forced to stare into the noonday sun, would have attempted to avoid a confrontation with the truth.
The Court majority, after knowingly transforming the votes of 50 million Americans into nothing and throwing out all of the Florida undervotes (around 60,000), actually wrote that their ruling was intended to preserve "the fundamental right" to vote. This elevates audacity to symphonic and operatic levels. The Court went on to say, after stealing the election from the American people, "None are more conscious of the vital limits on its judicial authority than are the members of this Court, and none stand more in admiration of the Constitution's design to leave the selection of the President to the people." Can you imagine that? As they say, "It's enough to drive you to drink."
What makes the Court's decision even more offensive is that it warmly embraced, of all the bitter ironies, the equal protection clause, a constitutional provision tailor-made for blacks that these five conservative Justices have shown no hospitality to when invoked in lawsuits by black people, the very segment of the population most likely to be hurt by a Bush administration. As University of Southern California law professor Erwin Chemerinsky noted: "The Rehnquist Court almost never uses equal protection jurisprudence except in striking down affirmative action programs [designed to help blacks and minorities]. I can't think of a single instance where Scalia or Thomas has found discrimination against a racial minority, or women, or the aged, or the disabled, to be unconstitutional."
Varying methods to cast and count votes have been going on in every state of the union for the past two centuries, and the Supreme Court has been as silent as a church mouse on the matter, never even hinting that there might be a right under the equal protection clause that was being violated. Georgetown University law professor David Cole said, "[The Court] created a new right out of whole cloth and made sure it ultimately protected only one personGeorge Bush." The simple fact is that the five conservative Justices did not have a judicial leg to stand on in their blatantly partisan decision. In a feeble, desperate effort to support their decision, the Court cited four of its previous cases as legal precedent. But when one looks up these cases, one finds that not one of them bears even the slightest resemblance to Bush v. Gore. In one (Gray v. Sanders), the state of Georgia had a system where the vote of each citizen counted for less and less as the population of his or her country increased. In another (Moore v. Ogilvie), the residents of smaller counties in Illinois were able to form a new party to elect candidates, something residents of larger counties could not do. Another (Reynolds v. Sims) was an apportionment case, and the fourth (Harper v. Virginia) involved the payment of a poll tax as a qualification for voting: If a first-year law student ever cited completely inapplicable authority like this, any thoughtful professor would encourage him not to waste two more years trying to become a lawyer. As Yale law professor Akhil Reed Amar noted, the five conservative Justices "failed to cite a single case that, on its facts, comes close to supporting its analysis and result."
If the Court majority had been truly concerned about the equal protection of all voters, the real equal protection violation, of course, took place when they cut off the counting of the undervotes. As indicated, that very act denied the 50 million Americans who voted for Gore the right to have their votes count at all. It misses the point to argue that the five Justices stole the election only if it turns out that Gore overcame Bush's lead in the undervote recount. We're talking about the moral and ethical culpability of these Justices, and when you do that, the bell was rung at the moment they engaged in their conduct. What happened thereafter cannot unring the bell and is therefore irrelevant. To judge these Justices by the final result rather than by their intentions at the time of their conduct would be like exonerating one who shoots to kill if the bullet misses the victim. With that type of extravagant reasoning, if the bullet goes on and accidentally strikes down a third party who is about to kill another, perhaps the gunman should ultimately be viewed as a hero.
Other than the unprecedented and outrageous nature of what the Court did, nothing surprises me more than how it is being viewed by the legal scholars and pundits who have criticized the opinion. As far as I can determine, most have correctly assailed the Court for issuing a ruling that was clearly political. As the December 25 Time capsulized it, "A sizable number of critics, from law professors to some of the Court's own members, have attacked the riding as ... politically motivated." A sampling from a few law professors: Vanderbilt professor Suzanna Sherry said, "There is really very little way to reconcile this opinion other than that they wanted Bush to win." Yale's Amar lamented that "for Supreme Court watchers this case will be like BC and AD. For many of my colleagues, this was like the day President Kennedy was assassinated. Many of us [had] thought that courts do not act in an openly political fashion." Harvard law professor Randall Kennedy called the decision "outrageous."
The only problem I have with these critics is that they have merely lost respect for and confidence in the Court. "I have less respect for the Court than before," Amar wrote. The New York Times said the ruling appeared "openly political" and that it "eroded public confidence in the Court." Indeed, the always accommodating and obsequious (in all matters pertaining to the High Court, in front of which he regularly appears) Harvard law professor Laurence Tribe, who was Gore's chief appellate lawyer, went even further in the weakness of his disenchantment with the Court. "Even if we disagree" with the Court's ruling, he said, Americans should "rally around the decision."
Sometimes the body politic is lulled into thinking along unreasoned lines. The "conventional wisdom" emerging immediately after the Court's ruling seemed to be that the Court, by its political ruling, had only lost a lot of credibility and altitude in the minds of many people. But these critics of the ruling, even those who flat-out say the Court "stole" the election, apparently have not stopped to realize the inappropriateness of their tepid position vis-á-vis what the Court did. You mean you can steal a presidential election and your only retribution is that some people don't have as much respect for you, as much confidence in you? That's all? If, indeed, the Court, as the critics say, made a politically motivated ruling (which it unquestionably did), this is tantamount to saying, and can only mean, that the Court did not base its ruling on the law. And if this is so (which again, it unquestionably is), this means that these five Justices deliberately and knowingly decided to nullify the votes of the 50 million Americans who voted for Al Gore and to steal the election for Bush. Of course, nothing could possibly be more serious in its enormous ramifications. The stark reality, and I say this with every fiber of my being, is that the institution Americans trust the most to protect its freedoms and principles committed one of the biggest and most serious crimes this nation has ever seenpure and simple, the theft of the presidency. And by definition, the perpetrators of this crime have to be denominated criminals.
Since the notion of five Supreme Court Justices being criminals is so alien to our sensibilities and previously held beliefs, and since, for the most part, people see and hear, as Thoreau said, what they expect to see and hear, most readers will find my characterization of these Justices to be intellectually incongruous. But make no mistake about it, I think my background in the criminal law is sufficient to inform you that Scalia, Thomas et al. are criminals in the very truest sense of the word.
Essentially, there are two types of crimes: malum prohibitum (wrong because they are prohibited) crimes, more popularly called "civil offenses" or "quasi crimes," such as selling liquor after a specified time of day, hunting during the off-season, gambling, etc.; and malum in se (wrong in themselves) crimes. The latter, such as robbery, rape, murder and arson, are the only true crimes. Without exception, they all involve morally reprehensible conduct. Even if there were no law prohibiting such conduct, one would know (as opposed to a malum prohibitum crime) it is wrong, often evil. Although the victim of most true crimes is an individual (for example, a person robbed or raped), such crimes are considered to be "wrongs against society." This is why the plaintiff in all felony criminal prosecutions is either the state (People of the State of California v. ___________) or the federal government (United States of America v. _____________).
No technical true crime was committed here by the five conservative Justices only because no Congress ever dreamed of enacting a statute making it a crime to steal a presidential election. It is so far-out and unbelievable that there was no law, then, for these five Justices to have violated by their theft of the election. But if what these Justices did was not "morally reprehensible" and a "wrong against society," what would be? In terms, then, of natural law and justicethe protoplasm of all eventual laws on the booksthese five Justices are criminals in every true sense of the word, and in a fair and just world belong behind prison bars as much as any American white-collar criminal who ever lived. Of course, the right-wing extremists who have saluted the Court for its theft of the election are the same type of people who feel it is perfectly all right to have a mandatory minimum sentence of ten years in a federal penitentiary for some poor black in the ghetto who is in possession of just fifty grams of crack cocaine, even if he was not selling it. [21 U.S.C. §841(b)(1)(A)(iii)]
Though the five Justices clearly are criminals, no one is treating them this way. As I say, even those who were outraged by the Court's ruling have only lost respect for them. And for the most part the nation's press seems to have already forgotten and/or forgiven. Within days, the Court's ruling was no longer the subject of Op-Ed pieces. Indeed, just five days after its high crime, the caption of an article by Jean Guccione in the Los Angeles Times read, "The Supreme Court Should Weather This Storm." The following day an AP story noted that Justice Sandra Day O'Connor, on vacation in Arizona, had fired a hole-in-one on the golf course.
The lack of any valid legal basis for their decision and, most important, the fact that it is inconceivable they would have ruled the way they did for Gore, proves, on its face, that the five conservative Republican Justices were up to no good. Therefore, not one stitch of circumstantial evidence beyond this is really necessary to demonstrate their felonious conduct and state of mind. (The fact that O'Connor, per the Wall Street Journal, said before the election that she wanted to retire but did not want to do so if a Democrat would be selecting her successor, that Thomas's wife is working for the conservative Heritage Foundation to help handle the Bush transition and that Scalia's two sons work for law firms representing Bush is all unneeded trivia. We already know, without this, exactly what happened.) But for those who want more, let me point out that there is no surer way to find out what parties meant than to see what they have done. And like typical criminals, the felonious five left their incriminating fingerprints everywhere, showing an unmistakable consciousness of guilt on their part.
1. Under Florida case and statutory law, when the Florida Supreme Court finds that a challenge to the certified result of an election is justified, it has the power to "provide any relief appropriate under the circumstances" (§102.168(8) of the Florida Election Code). On Friday, December 8, the Florida court, so finding, ordered a manual recount (authorized under §102.166(4)(c) of the Florida Election Code) of all disputed ballots (around 60,000) throughout the entire state. As a New York Times editorial reported, "The manual recount was progressing smoothly and swiftly Saturday ... with new votes being recorded for both Vice President Al Gore and Governor George W. Bush ... serving the core democratic principle that every legal vote should be counted" when, in midafternoon, the US Supreme Court "did a disservice to the nation's tradition of fair elections by calling a halt" to the recount. The stay (requested by Bush), the Times said, appeared "highly political."
Under Supreme Court rules, a stay is supposed to be granted to an applicant (here, Bush) only if he makes a substantial showing that in the absence of a stay, there is a likelihood of "irreparable harm" to him. With the haste of a criminal, Justice Scalia, in trying to justify the Court's shutting down of the vote counting, wrote, unbelievably, that counting these votes would "threaten irreparable harm to petitioner [Bush] ... by casting a cloud upon what he claims to be the legitimacy of his election." [Emphasis added.] In other words, although the election had not yet been decided, the absolutely incredible Scalia was presupposing that Bush had won the electionindeed, had a right to win itand any recount that showed Gore got more votes in Florida than Bush could "cloud" Bush's presidency. Only a criminal on the run, rushed for time and acting in desperation, could possibly write the embarrassing words Scalia did, language showing that he knew he had no legal basis for what he was doing, but that getting something down in writing, even as intellectually flabby and fatuous as it was, was better than nothing at all. (Rehnquist, Thomas, O'Connor and Kennedy, naturally, joined Scalia in the stay order.)
The New York Times observed that the Court gave the appearance by the stay of "racing to beat the clock before an unwelcome truth would come out." Terrance Sandalow, former dean of the University of Michigan Law School and a judicial conservative who opposed Roe v. Wade and supported the nomination to the Court of right-wing icon Robert Bork, said that "the balance of harms so unmistakably were on the side of Gore" that the granting of the stay was "incomprehensible," going on to call the stay "an unmistakably partisan decision without any foundation in law."
As Justice John Paul Stevens wrote in opposing the stay, Bush "failed to carry the heavy burden" of showing a likelihood of irreparable harm if the recount continued. In other words, the Court never even had the legal right to grant the stay. "Counting every legally cast vote cannot constitute irreparable harm," Stevens said. "On the other hand, there is a danger that a stay may cause irreparable harm to the respondent [Gore] and, more importantly, the public at large because of the risk that the entry of the stay would be tantamount to a decision on the merits in favor of the applicant. Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election." Stevens added what even the felonious five knew but decided to ignore: that it is a "basic principle inherent in our Constitution that every legal vote should be counted." From the wrongful granting of the stay alone, the handwriting was on the wall. Gore was about as safe as a cow in a Chicago stockyard.
In yet another piece of incriminating circumstantial evidence, Scalia, in granting Bush's application for the stay, wrote that "the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner [Bush] has a substantial probability of success." But Antonin, why would you believe this when neither side had submitted written briefs yet (they were due the following day, Sunday, by 4 P.M.), nor had there even been oral arguments (set for 11 A.M. on Monday)? It wouldn't be because you had already made up your mind on what you were determined to do, come hell or high water, would it? Antonin, take it from an experienced prosecutoryou're as guilty as sin. In my prosecutorial days, I've had some worthy opponents. You wouldn't be one of them. Your guilt is so obvious that if I thought more of you I'd feel constrained to blush for you.
2. When prosecutors present their circumstantial case against a defendant, they put one speck of evidence upon another until ultimately there is a strong mosaic of guilt. One such small speck is that in its 5-to-4 decision handing the election to Bush, the Court's ruling was set forth in a thirteen-page "per curiam" (Latin for "by the court") opinion (followed by concurring and dissenting opinions). Students of the Supreme Court know that per curiam opinions are almost always issued for unanimous (9-to-0) opinions in relatively unimportant and uncontroversial cases, or where Justices wish to be very brief. But as USA Today pointed out, "Neither was the case here." Again, on the run and in a guilty state of mind, none of the five Justices, even the brazenly shameless Scalia, wanted to sign their name to a majority opinion of the Court reversing the Florida Supreme Court's order to recount the undervotes. A per curiam opinion, which is always unsigned, was the answer. It is not even known who wrote the per curiam opinion, though it is believed to be O'Connor and/or Kennedy, neither of whose names is mentioned anywhere in the Court's sixty-two-page document. After they did their dirty work by casting their two votes on the case for their favoritetwo votes that overruled and rendered worthless the votes of 50 million Americans in fifty statesO'Connor and Kennedy wanted to stay away from their decision the way the devil stays away from holy water. Indeed, by their per curiam opinion, it was almost as if the felonious five felt that since their names would not be on the legally sacrilegious opinion, maybe, just maybe, the guilt they knew they bore would be mitigated, at least somewhat, in posterity.
3. The proof that the Court itself knew its equal protection argument had no merit whatsoever is that when Bush first asked the Court, on November 22, to consider three objections of his to the earlier, more limited Florida recount then taking place, the Court, on November 24, only denied review on his third objectionyeah, you guessed it, that the lack of a uniform standard to determine the voter's intent violated the equal protection clause of the Fourteenth Amendment. Since the Court, on November 24, felt that this objection was so devoid of merit that it was unworthy of even being considered by it, what did these learned Justices subsequently learn about the equal protection clause they apparently did not know in November that caused them just three weeks later, on December 12, to embrace and endorse it so enthusiastically? The election was finally on the line on December 12 and they knew they had to come up with something, anything, to save the day for their man.
The bottom line is that nothing is more important in a democracy than the right to vote. Without it there cannot be a democracy. And implicit in the right to vote, obviously, is that the vote be counted. Yet with the election hanging in the balance, the highest court in the land ordered that the valid votes of thousands of Americans not be counted. That decision gave the election to Bush. When Justice Thomas was asked by a skeptical high school student the day after the Court's ruling whether the Court's decision had anything to do with politics, he answered, "Zero." And when a reporter thereafter asked Rehnquist whether he agreed with Thomas, he said, "Absolutely, absolutely." Well, at least we know they can lie as well as they can steal.
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