Comment: Contempt of Court
Roger Banks
Wednesday, Dec. 27, 2000
Justice Stevens' dissenting opinion in Bush vs. Gore is purportedly
based on a concern for the nation's confidence in the judge as
an impartial guardian of the rule of law. Sadly, however, it is
Stevens' dissent that serves to undermine judges and displays an
abasing disregard for the rule of law.
Of course, much has been written about this historic U.S. Supreme Court
case that put an end to Al Gore's challenge to the election results in
Florida. Yet to understand just how subversive Stevens' dissent is,
it is important to reflect on a particular phrase used by Stevens, which,
like all words in Supreme Court decisions, was very deliberately chosen.
Stevens writes "that we may never know with complete certainty the
identity of the winner of this year's presidential election."
Complete certainty regarding the identity of the winner, however, is
established by the very opinion from which Stevens dissents.
The Court ruled by a majority of 7 to 2 that the recount ordered by the
Florida high court was unconstitutional, and by a majority of 5 to 4 that no
further counting could lawfully be done, thus ensuring that Florida's
certification of Gov. Bush would stand. The assertion that the winner
could remain uncertain in the wake of these holdings can stem only from a
belief that the court's decision is somehow less than authoritative.
There is uncertainty, of course, about the identity of the candidate for
whom a majority of the people intended to vote. Indeed, thousands of
citizens across the country intended to vote for one candidate or another
but failed to express that intent in a legally cognizable way. Some
would-be voters improperly marked their ballots; others, equally well
intentioned, failed to show up at the polls. But the intentions of would-be
voters are irrelevant to the identity of the winner of the election – at least to anyone who respects the rule of law.
Justice Stevens' disregard for judicial authority is especially
disturbing because it incorporates the same fallacy Gore supporters used in
their threats to "count" invalid ballots after Bush's
victory to determine the "true winner." It is an inauspicious
moment in constitutional history when such nonsensical efforts, founded on
contempt for the law, find support in the words of a U.S. Supreme Court
justice.
* * *
Roger Banks is an attorney and writer in Washington, D.C. His book
reviews appear in the "After Hours" section of the Legal Times, a journal of
law and politics in Washington. His writings have appeared in the
Washington Times, the Washington Post, the Connecticut Law Tribunal, the
Journal of Commerce and several online publications. Roger has appeared on
nationally syndicated television and radio programs. He can be contacted at rogerbanks@earthlink.net.
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