December 10, 2000
A Dark Cloud
By Robert Parry
For the first time in history, the U.S. Supreme Court has ordered a halt in the counting of ballots cast by citizens for the election of the president of the United States.
It was a breathtaking moment whose frightening grandeur was missed by the tinny news media punditry about which side “won” and which side “lost.”
It was a moment that wafted the unmistakable odor of a new order imposing itself in defiance of the popular will. There were no tanks in the streets, but this was as raw an imposition of political power as this nation has seen in modern times.
In a 5-4 decision on Saturday, the hard-line conservatives who dominate the highest court in the land told vote-counters across Florida to stop counting ballots that had been cast by voters on Nov. 7. The partial recount had been ordered by the Florida Supreme Court on Friday, and Texas Gov. George W. Bush had sought the injunction to stop the counting.
The federal ruling made clear that the count was being halted because the U.S. Supreme Court's conservative majority feared that the recount would show that Vice President Al Gore got more votes in Florida than Bush did.
That outcome would “cast a cloud” over the “legitimacy” of an eventual Bush presidency if the U.S. Supreme Court later decided to throw out the Gore gains as illegal, explained Justice Antonin Scalia in an opinion speaking for the majority.
“Count first, and rule upon the legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires,” Scalia wrote.
In other words, it was better for the U.S. public not to know for sure that Gore got the most votes if – as expected – the Supreme Court’s five hard-line conservatives rule on Monday to prohibit any more vote-counting and effectively award Bush the presidency.
For the American people to realize that they gave Gore more votes nationally – as well as in Florida – while Bush moves into the White House simply wouldn’t generate “the public acceptance [that] democratic stability requires,” as Scalia put it.
If such logic had appeared in the old Soviet Union, we would be pulling out copies of George Orwell’s Animal Farm to search for comparable phrases.
In a remarkable dissent also released on Saturday, Justice John Paul Stevens took Scalia’s reasoning to task.
Stevens, a moderate conservative who was appointed by Republican President Gerald Ford, said the injunction against the vote tally violated the traditions of “judicial restraint that have guided the Court throughout its history.”
Stevens complained that the high court’s action overrode the judgment of a state supreme court, took sides on a constitutional question before that issue was argued to the justices, and misinterpreted the principles of “irreparable harm.”
“Counting every legally cast vote cannot constitute irreparable harm,” Stevens argued. “On the other hand, there is a danger that a stay may cause irreparable harm to the respondents [the Gore side] and, more importantly, the public at large” because the stay could prevent a full tally of the votes before the impending deadline of Tuesday for selecting Florida’s electors.
As for the “legitimacy” issue, Stevens answered Scalia’s rhetoric directly. “Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election,” Stevens wrote.
There remains a chance that one or more of the court's hard-line conservatives will recognize the danger of their present course. The court could decide on Monday to let the vote counting resume and extend the current Tuesday deadline so there is sufficient time to complete it.
Bush might hold on to his narrow lead -- or Gore might prevail -- with the winner deriving his legitimacy from the fullest count of the Florida ballots as possible.
But if the five hard-line conservatives – Chief Justice William Rehnquist, Anthony Kennedy, Sandra Day O’Connor, Clarence Thomas and Scalia – insist on stopping the vote count and handing the presidency to George W. Bush, the United States will have embarked upon a dangerous political journey whose end could affect the future of all mankind.
For American political institutions to ignore the will of the voters – and to wrap partisanship in the judicial robes of the nation’s highest court – will almost certainly be followed by greater erosion of political freedom in the United States and eventually elsewhere.
Illegitimacy and repression are two of history’s most common bedfellows.
Perhaps most chilling, at least for the moment, is the now-unavoidable recognition that the U.S. Supreme Court, the country’s final arbiter of justice, has transformed itself into the right wing’s ultimate political weapon.
A dark cloud is descending over the nation.
Robert Parry is an investigative reporter who broke many of the Iran-contra stories in the 1980s for The Associated Press and Newsweek.