Supreme Court and electoral politics


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No man worthy of the office of President should be willing to hold it if counted in or placed there by fraud. Either party can afford to be disappointed by the result. The country cannot afford to have the result tainted by the suspicion of illegal or false returns. ~ President Ulysses S. Grant, on the disputed Hayes – Tilden election of 1876-1877

Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law. ~ Justice John Paul Stevens [Dissent] Bush v. Gore (2000)

These quotations mean a lot to people who observed the Supreme Court’s appointment of George W. Bush to the presidency in December 2000. Bush acceded to the office not due to vote fraud, which was an issue in 1876, but because the Supreme Court declined to follow constitutional procedures to select the president, either when election results are in dispute, or when no candidate has a majority in the electoral college.

Grant’s non-partisan handling of the election crisis that followed the vote in 1876 managed to head off the taint of illegitimacy he sought to prevent. Not so in 2000. Many citizens, no matter how they voted that year, believed Bush reached the White House by illegitimate means. That the Supreme Court was the vehicle for such illegitimacy made the whole affair worse. The candidates took their case to the court in order to resolve a political dispute by constitutional means. The justices dressed up their decision in legal language, but in fact they used political reasoning to resolve a political dispute. They resolved the election, but they failed in their reasoning, and weakened their own authority as a result.

Let’s have a look not at what happened, but at the consequences of what happened in 2000. When the Supreme Court disregards the constitution, rot in the republic reveals itself more clearly than it could any other way. The problem is, disregard for the constitution by the justices advances the rot more rapidly than any other public act.

Take Earl Warren’s willingness to lend his prestige, and therefore the Court’s prestige, to the commission that investigated Kennedy’s assassination. What do you conclude about Warren when the commission produces a false report? You conclude that the president, and other officials in the executive branch, can push the Chief Justice around. Instead of Warren’s prestige lending credibility to the commission, the commission’s incredibility taints Warren’s reputation.

The same kind of reverse damage occurs in a close election like that in 2000. The candidates figure, when they take their case to the Supreme Court, that the court’s finding will lend legitimacy to the election result. Instead, the court’s reasoning and procedure are so transparently unconstitutional, the court merely casts its own prestige into doubt. Did anyone expect the court to halt the recount in Florida, then impose its own decision? The court claimed the country couldn’t wait any longer. Who but an impatient press ever advanced that argument? It’s like a parent tired of the bother saying to children, “This is how it’s going to be, because I say so.”

The Supreme Court does not exercise parental authority, and political parties certainly have political means to settle their disputes. No one threatened violence in 2000. The only existential, or external pressure came from the inauguration date in 2001. That was about six weeks away when the Supreme Court acted. In politics, a lot can happen in twenty-four hours, let alone six weeks. The Supreme Court created a sense of urgency to justify an unconstitutional action. If the court wanted to say anything, it needed only remind the parties they should resolve the problem before the inauguration.

The deleterious result of Bush v. Gore is that if the Supreme Court disregards the constitution in its decisions, why shouldn’t everyone else? Political actors regard the constitution, the Bill of Rights in particular, as a set of constraints they would rather not have to observe. If the court sets an example that points in the opposite direction – for expedience sake, you can ignore these constraints – then why wouldn’t political actors take their cue from that? When constitutional norms are already shaky, a signal from the court that norms don’t matter communicates to political actors that they have a lot of license to do what they like.

That is exactly what we have seen since 2000. Through two presidencies, we have watched government officials make decisions, pursue policies, and engage in practices that clearly violate the constitution. The court declines to take a position on these matters, suggesting that it does not render judgments on political matters. That reasoning is just an excuse. The legal issues at stake certainly involve constitutional interpretation. They are not primarily political at all. Moreover, the court did not decline to render judgment in 2000, when candidates asked it to apply constitutional principles to resolution of a political question. Court justices know you cannot draw a clear line between political and constitutional issues. The whole history of the court’s decisions shows that.

I wrote toward the end of Bush’s presidency that if we don’t act to save our constitution now, we won’t be able to restore its authority again. The document unites us, or it did. Since 2008, President Obama has acted just as Bush did. He disregards the constitution whenever it imposes inconvenient limits on his freedom of action. He does not care to restore its authority, or to use the Bill of Rights to guide his administration’s policies. He certainly does not care whether the constitution underwrites the war powers he has assumed for himself, or any of the other powers he has assumed, for that matter.

In all of these ways, Barack Obama emulates George W. Bush, who managed to become our first illegitimate president. That Bush achieved this status through a Supreme Court decision tells you something about the justices who appointed him. It also indicates norms that knit our republic together had eroded substantially by the time the court rendered its extraordinary decision. Here I’ve held the court responsible for weakening the constitution, but what currents in our legal and political culture led the court to make such a decision to begin with?