Justice Scalia Says Something Stupid

[Brown]

This story from AP and Yahoo reports that some members of the Supreme Court are "defending" their actions in the decisions in Bush vs. Gore. As of this writing, there has never been a coherent defense of the Court's granting of the stay and subsequently awarding the election to Bush. There has never been a formal explanation from the Court or from any of the justices as to why years and years of precedent were simply ignored in order to reach the five members' desired result.

I have written length about what grotesque actions five members of the Supreme Court took in 2000, and I will not repeat them. For those who are interested in details, I recommend The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President, by Vincent Bugliosi.

In any event, Justice Scalia "defended" his part in this grotesque saga with the following:

"It's water over the deck — get over it," Scalia said, drawing laughs from his audience.

This is a really, really stupid thing to say. And coming from him, it is hypocritical in the extreme.

Imagine one felt that one or more Supreme Court decisions stunk to high heaven. The decisions were fundamentally flawed, inconsistent with pre-exiting law, and simply rotten jurisprudence. "Get over it" is the wrong attitude to take.

Certainly those who are result-oriented right-wingers (which arguably include Scalia himself) have not "gotten over" Roe vs. Wade. They haven't "gotten over" several decisions that uphold the Establishment Clause or limit the death penalty or protect freedom of expression.

The Supreme Court heard oral arguments a few months ago in abortion-related cases. Suppose Justice Scalia had questioned the constitutional basis for abortion rights during oral argument, and in response, suppose an advocate said, "Justice Scalia, Roe vs. Wade decided that issue. Get over it." Would that be a proper thing to say to a justice?

As a matter of fact, it would be a very rude and foolish thing to say. (It would almost certainly subject any advocate to disciplinary action who said such a thing to any member of the bench.)

I submit that if "Get over it" is a rude and foolish thing for a citizen to say to a justice, it is a rude and foolish thing for a justice to say to a citizen.

 

[Upchurch]

I was going to point out that it was probably just a joke in an informal setting wasn't meant to be taken seriously, but reading the article, he was doing a Q&A at a college in New York.

I agree with Brown.

 

[Daylight]

I agree with Brown too.

I wonder if OJ will be using this?

 

[Puppycow]

But unlike Roe v. Wade, this decision couldn't even be reversed. I don't agree with it (I voted for Gore) but I don't see much point in revisiting it any more.

BTW, do those ballots still exist? Will it ever be possible to do a definitive recount that will give an indisputable answer, even if only for historical understanding, or will we forever be left with that lingering doubt in the back of our national consciousness?

 

[Kerberos]

But unlike Roe v. Wade, this decision couldn't even be reversed. I don't agree with it (I voted for Gore) but I don't see much point in revisiting it any more.

BTW, do those ballots still exist? Will it ever be possible to do a definitive recount that will give an indisputable answer, even if only for historical understanding, or will we forever be left with that lingering doubt in the back of our national consciousness?

I think it's already been done, IIRC Gore won if you counted the votes some ways, and Bush if you counted them other ways (basically depending on whether ther had to be a hole clean through, a hole, but with the with the flap still attached or no hole, but an impression on the paper etc.).

 

[TragicMonkey]

I never understood why we bothered with a recount in such a close race. Surely the logical solution would be to do the whole thing over, nationally. Not only would that help correct any "mistakes" in the previous voting, but it would inspire more people to vote. And the more who vote, the more representative the elected official truly is.

 

[SezMe]

I was more concerned about this quote from the article:

"A no-brainer! A state court deciding a federal constitutional issue about the presidential election? Of course you take the case," Kennedy told ABC News correspondent Jan Crawford Greenburg in her new book, "Supreme Conflict."

Brown, fill me in. Haven't voting procedures always been determined at the state level. What "federal constitutional issue" was there? And if there was, in fact, such an issue, why was the court so adament in asserting that their decision was not precedent setting?

 

[Ian Osborne]

I think it's already been done, IIRC Gore won if you counted the votes some ways, and Bush if you counted them other ways (basically depending on whether ther had to be a hole clean through, a hole, but with the with the flap still attached or no hole, but an impression on the paper etc.).

Is there a 'correct' way to count them? All of those things are indicative of the voters' intentions, though I could understand an impression on the paper might not be enough to qualify as a vote. Surely ballots with a clean hole and those with a hole with a flap attached are treated the same, though?

 

[Kerberos]

Is there a 'correct' way to count them? All of those things are indicative of the voters' intentions, though I could understand an impression on the paper might not be enough to qualify as a vote. Surely ballots with a clean hole and those with a hole with a flap attached are treated the same, though?

As far as I understand; no, there is not an officially correct way to count them. I'll grant that this seems almost unbelievably sloppy, and it's possible that I remember incorrectly, but I believe that it is indeed the case that no set prior standard existed. Perhaps somebody else could weight in to confirm if my recollection is indeed correct?

ETA: and with regard to an attached flap, the problem there is probably that there is no clear line between an impression and a flap. We could move by small steps from an impression over stretching the paper over a small penetration to hole clean through, but with the paper hanging on by a thread. Such concerns might seem trivial, and in most cases are, but when the presidency is on the line they become highly relevant.

 

[Brown]

I was more concerned about this quote from the article:

Brown, fill me in. Haven't voting procedures always been determined at the state level. What "federal constitutional issue" was there? And if there was, in fact, such an issue, why was the court so adament in asserting that their decision was not precedent setting?

First, a word about Justice Kennedy's remark. On the face of it, it seems to be exceptionally foolish. There is, however, a possibility that the remark made some sense in context, and the story does not provide that context.

The remark attributed to former Justice Sandra O'Connor, that the Florida Supreme Court was "off on a trip of its own," is similarly foolish. On its face, it is a rude slap in the face to Florida's highest judicial body, and as of this writing, no one has ever pointed out in which way the Florida Court wasn't acting appropriately (other than issuing decisions with results they didn't like). But once again, this remark might not be so bad if placed in context.

In contrast, the context of Justice Scalia's succinct remark is fairly clear. It is a naked insult, a verbal version of "giving the finger." It is a remark of contempt. It is the attitude of a bully: So I screwed you. So what? There's nothing you can do about it, so shut up!

And that's why this remark is really, really stupid.

As for whether voting procedures always been determined at the state level: basically, yes, they have. There is only one regular vote for office that is on a national level. That is, of course, the presidency, and it comes up for vote once every four years. (Technically speaking, even this is a state issue, as one votes for state electors who vote with electoral votes; but the office is the only one that indivisibly exercises authority over and is elected by all of the voters in the country.) Everything else is at the level of states or state-subdivisions, and these issues come up every year, sometimes more than once a year. So at it makes sense that states manage the elections, and that the procedures used to manage state-wide issues also apply to presidential votes, too.

Article II, section 1 of the United States Constitution provides that each State has the power to decide how to "chuse" its presidential electors. There are certain restrictions that Congress can implement, but none of those is applicable here.

The "federal constitutional issue" that five members of the Court saw was a purported violation of the Equal Protection Clause of the 14th Amendment.

Purportedly the five members of the Court were concerned about disparate counting standards. The five members also expressed concern about partial totals, and the qualifications of those doing the recounting, and the potential for additional problems during the recount. The five members said there were "minimal procedural safeguards":

The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.

The problems with the five members' constitutional reasoning would be blatantly obvious to a first-year law student. I'll just list a few of the howlers.

First, the unfairness that the five members of the Court perceive is an unfairness to the voter. One voter's vote counts, but another similarly situated voter's does not. The immediate problem here is that the one bringing the case to the Supreme Court, George W. Bush, was not a Florida voter! He voted in a state other than Florida. Under the jurisdictional rules of standing, Bush had no right to assert in court a perceived violation of someone else's rights.

This brings up another sore point, one for which Justice Scalia deserves criticism. In his concurrence in the order granting Bush a stay of the recount (an order which in my view is just as monstrous as the final decision), Justice Scalia said:

The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.

This is an infuriating remark, and legal scholars' jaws dropped when they read it. In effect, Justice Scalia was saying that Bush had a right to win the election, and a recount which might show that he actually got fewer votes than Gore would injure this right.

A second immediate problem with the five members' analysis is that the Court's own 14th Amendment jurisprudence, developed literally over centuries, would not afford Bush relief under these circumstances. There was no showing of disparate impact on him. In other words, there was no indication then--and there has never been any evidence ever--that Bush votes would be subjected to different scrutiny than Gore votes. And furthermore, evidence of discriminatory intent was completely missing.

And then the overall remedy is absurd: the five members hold that if there is no guarantee that these votes can be counted the right way, then no one ought to try to count them at all! In other words, the five members of the Court, purportedly protecting the rights of voters, determined to flush several thousand of those voters' votes down the toilet! The mind boggles.

There are other outrages in this opinion as well, but now is not the time. Suffice it to say that five members of the Court went out of their way to find a constitutional problem, and proceeded to ignore basic principles of constitutional law to make certain the election went to Bush.

In case you're wondering whether the Court listens to every 14th Amendment case, it doesn't. More than 99% of 14th Amendment cases (probably closer to 99.99%) never make it to the Supreme Court. Just because the 14th Amendment is at issue doesn't make it a slam dunk (or in Justice Kennedy's words, a "no-brainer") that the case will be heard by the Supreme Court.

As for why the five members were so adamant in asserting that their decision was not precedent setting, let's first turn to the reason that they gave:

The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

It's an interesting remark, as it seems that the five members of the Court recognize that if the same sort of concerns were aired in every election, then virtually every national election this country has ever had has been unconstitutional. So they say that they limit their consideration to "present circumstances."

This remark, legally speaking, is another howler. In every Supreme Court case, there are unique facts and circumstances, but the Court does not routinely go out of its way to say "but this ruling is just for this case only, because of its unique facts," as the five members did in Bush vs. Gore. A fundamental idea behind judicial lawmaking is that the facts of cases differ, but the legal principles applied to similar cases should generally remain the same. There was no reason to exempt Bush vs. Gore from that general principle of jurisprudence ... unless the five members of the Court knew that they were making a special exception for the benefit of Bush and no one else.

 

[Darth Rotor]

I have written length about what grotesque actions five members of the Supreme Court took in 2000, and I will not repeat them. For those who are interested in details, I recommend The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President, by Vincent Bugliosi.

Is this the same guy who wrote "Outrage" about the OJ trial?

I am still puzzled at why candidate Gore did not ask for a recount of the whole state, rather than the limited precincts. That would seem to me a clean hands approach, as well as a request to count all votes. As I understand it, there were tens of thousands of ballots still no counted in northern Florida.

I think I am going to take a look at Bugliosi's take on it, since I so enjoyed his slam dunk of the OJ trial. Everyone came out looking like an idiot in that one.

DR

 

[Brown]

Is this the same guy who wrote "Outrage" about the OJ trial?

I am still puzzled at why candidate Gore did not ask for a recount of the whole state, rather than the limited precincts. That would seem to me a clean hands approach, as well as a request to count all votes. As I understand it, there were tens of thousands of ballots still no counted in northern Florida.

Yes, Vince wrote "Outrage." He is perhaps best known as the prosecutor who put Charlie Manson behind bars, and afterward wrote "Helter Skelter."

According to Amazon.com, Bugliosi is finally going to release his long-awaited analysis of the JFK assassination later this year.

Gore should have requested a statewide recount. Ostensibly he was trying to make the recount simpler to implement, but it ended up looking like he was trying to get the benefit only of districts where he might win. In the end, of course, this tactical goof was harmless. Whether Gore requested it or not, the Florida court ordered a statewide recount anyway. It was the statewide recount that five members of the Supreme Court stopped.

 

[Darth Rotor]

Whether Gore requested it or not, the Florida court ordered a statewide recount anyway. It was the statewide recount that five members of the Supreme Court stopped.

Check. That does not answer why all of the votes were not counted in the first place.

I note that no Court obstructed the recount in Virginia recently, in the close US Senatorial (a national office) race between Webb and Allen.

DR

 

[Upchurch]

But unlike Roe v. Wade, this decision couldn't even be reversed. I don't agree with it (I voted for Gore) but I don't see much point in revisiting it any more.

I do. I'd like it to be understood that this should never happen again. Like Japanese American Internment during WWII, we can't reverse it but we can never forget it so that it doesn't happen again. We don't need a precedent set.

 

[hgc]

I bet Scalia is looking forward to being able to say to some future audience "get over it" about his engineering the theft of the 2008 election.

 

[ceo_esq]

As of this writing, there has never been a coherent defense of the Court's granting of the stay and subsequently awarding the election to Bush.

It has been years since I really paid attention to this, but I wonder if the foregoing might not be an overstatement. I suppose it depends on what you mean by a "coherent" defense, but I assume you mean by it something other than simply a defense ultimately persuasive to you. There have been a number of defenses, albeit that the greater part of them have defended the result on the basis of the alternative grounds raised by Rehnquist, Scalia and Thomas. Posner, Epstein, Lund, McConnell and Yoo are names that come to mind from having followed the debate in the couple of years following the decision.

 

[Beerina]

I think it's already been done, IIRC Gore won if you counted the votes some ways, and Bush if you counted them other ways (basically depending on whether ther had to be a hole clean through, a hole, but with the with the flap still attached or no hole, but an impression on the paper etc.).

Yes, but you can't do that fairly. You can't come up with half a dozen different rules, check them all, then pick the one where your candidate wins and facetiously claim that's the one, proper, honest way to count.

IIRC, you could NOT get Gore to win no matter how you counted, unless you assume (which is quite reasonable logically) that most of the mistaken Pat Buchanan votes were actually for Gore. And, while that is enough to determine the election is fubar, you cannot ethically reassign to Gore.

 

[Regnad Kcin]

"It's water over the deck — get over it," Scalia said, drawing laughs from his audience.

I could swear 12-year-olds were not eligible to serve on the Supreme Court.

 

[Darth Rotor]

I could swear 12-year-olds were not eligible to serve on the Supreme Court.

The more common expression is "water over the dam." I presume Justice Scalia was referring to a sinking ship. How droll.

DR

 

[Random]

Yes, but you can't do that fairly. You can't come up with half a dozen different rules, check them all, then pick the one where your candidate wins and facetiously claim that's the one, proper, honest way to count.

IIRC, you could NOT get Gore to win no matter how you counted, unless you assume (which is quite reasonable logically) that most of the mistaken Pat Buchanan votes were actually for Gore. And, while that is enough to determine the election is fubar, you cannot ethically reassign to Gore.

There were voting models where Gore would have won not counting the Jews of Palm Beach who had changed their minds about Hitler. But the number of erroneous votes in Palm Beach was such that even if you only assigned a fraction of them to Gore, Gore would have come out ahead under all the voting models. It is virtually undsiputed that more people in Florida went to bed that night thinking that had voted for Gore than Bush. But with no way of confirming what percentage of those votes were supposed to go to Gore, Buchanan got those votes.