Scalia Sullies Himself Again

By way of Josh Marshall comes this brief in the NYPost:

SCALIA RAPS GORE FOR '00

By FRANKIE EDOZIEN November 22, 2005 -- U.S. Supreme Court Justice Antonin Scalia says the high court did not inject itself into the 2000 presidential election.

Speaking at the Time Warner Center last night, Scalia said: "The election was dragged into the courts by the Gore people. We did not go looking for trouble."

But he said the court had to take the case.

"The issue was whether Florida's Supreme Court or the United States Supreme Court [would decide the election.] What did you expect us to do? Turn the case down because it wasn't important enough?"

The conservative justice, who grew up in Queens, contended there would have been a difficult transition had the court not stepped in.

He also pointed out that studies by news organizations after the election showed Bush still would have won a Florida recount.

Boy, I barely know where to begin here.

First, Gore didn't appeal to the Supreme Court -- Bush did, and twice. In any case, the fact that Gore's people began the litigation is totally beside the point. I assume that the allegedly conservative Scalia does not vote to grant cert for every case appealed to the SCOTUS (sorry -- hard for me to avoid the sarcastic understatement there). Moreover, lower federal courts had no trouble rejecting Bush's appeals.

Second, it's pretty hard for me to understand how Scalia can say the Court didn't go "looking for trouble" when (in Bush v. Gore II) it issued an injunction to stop the recount and then ruled days later that no constitutional recount could be designed in time to meet the deadline -- on the final day allowed by the safe harbor provision. The Court couldn't have looked much harder than it did.

Third, I just marvel at this quote, coming from Scalia:

"The issue was whether Florida's Supreme Court or the United States Supreme Court [would decide the election.] What did you expect us to do? Turn the case down because it wasn't important enough?"

Gosh, I thought the alleged originalist conservatives were committed to the view that original meaning takes precedent when deciding Constitutional issues, and that they frowned on justices who impose their own personal policy preferences when deciding cases.

Actually, I did expect the Court to turn the case down. But not because it was unimportant (gee, I thought Scalia was the sort of hard-headed guy who wouldn't let "importance" get in the way of law -- what's that essay of his? The rule of law as a law of rules).

No, I (really) expected the Court to turn the case down because the issues involved were basically state, not Federal ones. Frankly, anyone who thinks the counting standard ordered by the Florida SC (the "intent of the voter") violates equal protection will have a heck of a time explaining how it is then consistitutional to hold an election in which different voting technologies -- and thus, quite obviously, different standards for assessing voter intent -- are used in different counties of the same state (never mind differences across states, which raises other federalism issues).

More to the point, I expected the Court to turn the case down precisely because of its importance. Oddly, few people seem to recall that the Twelfth Amendement considered quite explicitly the possibility of contested Presidential elections (no surprise, given the Jefferson-Burr election of 1800):

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.--The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.

The Twentieth Amendment (ratified 129 years after the Twelfth) further modifies the Twelfth, stating that

If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

The reason I bring up this text concerns what would have happened if the SCOTUS had not injected itself into the election's resolution. Suppose that Gore would have won the Florida recount. In that event, the Republican-controlled Florida legislature most likely would have sent a competing slate of electors to Congress. Thus there would have been two sets of electors, and there would certainly have been a challenge to the recognition of the Gore slate. Meanwhile, as the VP at the time, Gore would have had the power (positively, if not normatively) to refuse to open the envelope containing the GOP electors. The result would have been that neither candidate would have had a majority of electors, and the election would have been thrown into the House.

Since at the time Republicans controlled more state delegations than Democrats, the House would most certainly have elected Bush the President (further intriguing issues arise concerning the Vice Presidency, since the installment of the new Senate happened before January 20th; since the Dems had 50 seats as well as the Vice Presidency via Gore in that short time, they could conceivably have elected Joe Lieberman--though not Al Gore--VP, though I doubt he'd have wanted that under the circumstances...nor would the Dems have really benefitted given that then-Governor Rowland of Connecticut would have replaced Lieberman with a Republican).

So I'm saying that either way, Bush was going to be President. Then why am I so appalled by the SCOTUS's intervention? Because the Constitution is very clear about what should have happened, and the SCOTUS simply ignored the Constitution. The process here was very, very important. The Constitution places these matters in the Congress for a reason: its members are politically responsible in a way that Justices of the Supreme Court are not (and for good reason). The framers of the 12th and 20th Amendments clearly believed that such matters should be resolved by the (normatively) political branches. Not only that, they SAID SO. The SCOTUS simply ignored these facts.

I would be less disgusted with Scalia and his co-usurpers if they were out there arguing with any real plausibility that the FSC's decisions violated something about the structure of our federalist system or some civil rights not then obviously violated by the entire election held in Florida. But the FSC's decision to use the completely vague "intent of the voter" standard was quite obviously a response to the unanimous (and unsigned) SCOTUS decision in Bush v. Gore I. That decision made clear that since the US Constitution specifically gives state legislatures the right to determine the rules of Presidential (elector) elections, the FSC couldn't appeal to the Florida Constitution, but had to confine itself instead to Florida statutes. Well, "intent of the voter" is what Florida laws said about the standard for counting a vote -- and the relevant sections of the Florida statutes were enacted in 1998. The FSC did what the SCOTUS made it do, and for the SCOTUS to criticize this standard after the decision in Bush v. Gore I meets the definition of chutzpah.

The notion that the Court had to take this case simply ignores the history, meaning and text of the Constitution as amended. Moreover, this notion is quite clearly rooted in a view that courts should get involve to improve things, not just when law (as interpreted by individual judges) mandates getting involved. I'm not sure where I come down on that question in general. But I'm pretty sure that Scalia and his ilk have gone preening across the national stage for some years now insisting that they would never, ever get involved in results-oriented jurisprudence. No, they claim to do only what they must. And they must be kidding.

Fourth, the question of whether Bush would have won even with a recount is quite beside the point. Imagine I fatally shoot a man in the head as he walks down the street, and when I am prosecuted, I say "Well, he may have had a terminal disease that would have killed him in the next instant." To back up my claim, I point to a review of the man's medical records by a group of media representatives, which review shows that there was a high likelihood that he had such a disease and would have died soon after the shooting. Should I be shown leniency? Quite obviously not, since even if it was known that he would die I shouldn't receive leniency. The media recounts (which, by the way, found that Gore would have won under some scenarios -- as memory serves, those in which the most broad set of non-counted votes would have been reviewed) are really quite irrelevant to the question of whether the Court's involvement was legitimate.

If you doubt my claim on this relevance point, ask yourself: would Scalia have advocated retrospectively overruling the decision and replacing Bush with Gore if (he was convinced that) the media recount found Gore would have won under any counting/review scenario? To ask this question is to know the answer.

The US Supreme Court should have stayed out of the election. It involved itself in what was essentially a state matter, and one that was handled with seriousness and fairness by the Florida courts (with the exception of the bizarre performance by N. Sanders Sauls). The FSC considered four separate cases related to the 2000 election and decided in Bush's favor in two of them. In the other two, it provided well-reasoned opinions that took into account the facts of the case and sought to craft reasonable remedies within the legal framework it understood to apply. By contrast, the US Supreme Court jumped into a case having at best limited, technical federal issues at stake. It then blew by those issues to locate rights under the equal protection clause that the Court disingenuously honored only in the breach. In the process, the Court declared that its decision, supposedly based on Constitutional principles, would establish no precedent. Some rule of law.

Scalia's disgrace for his role in these events is only magnified by his insistence on defending it on the very results-based grounds for which he so regularly castigates others.

Update: See this post at Left in the West for the observatin that it's not even true that Gore was first to court (something I'd forgotten).