Charles J. Ogletree,
Faculty Director

2001 OPINION EDITORIAL

THE COURT'S TARNISHED REPUTATION
By CHARLES J. OGLETREE JR.

December 17, 2000, The Boston Globe

IN HIS DISSENT TO TUESDAY'S SUPREME COURT DECISION, JUSTICE JOHN PAUL STEVENS SPOKE WITH A CANDOR THAT WILL NO DOUBT COME TO BE SEEN AS PRESCIENT: "Although we may never know with complete certainty the identity of the winner . . . 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."

The Supreme Court's decision reversing the highest court of Florida's determination that all votes ought be counted should make Americans question the ability of this court to resolve issues of great dispute. The Supreme Court, unlike the other branches of government, is often isolated from public purview, and is able to make its decisions in a deliberative and objective way. The justices are given life appointments to ensure their independence. The court has unlimited authority to make decisions without fear that partisan politics will intrude. It can use this independence to answer difficult questions in a way that unites rather than divides and moves our country closer to achieving the high ideals set forth in the Constitution. Indeed, on many occasions we have witnessed decisions that, although highly divisive from a political point of view, lead to results that are acceptable to the widest possible audience.

When, in 1954, the Supreme Court ruled that segregation of public schools was unconstitutional, the fact that the decision was unanimous gave it a profound weight that demanded respect, even though many thought segregated schools were appropriate and necessary.

In 1973, when a unanimous Supreme Court ruled that President Nixon had to relinquish the Watergate tapes, the decision was again respected, even though no court had ever demanded that a president respond to its judgment in such a way.

With the most recent decision, the court has lost much of the respect it has commanded. Last Saturday, when the court issued a stay to halt the tally of 45,000 uncounted ballots ordered by the Florida Supreme Court, it virtually announced its decision in advance - Justice Scalia declared with reckless bravado that he had the five votes necessary to decide for Bush.

It suffices to say that the issuance of the stay suggests that a majority, while not deciding the issues presented, believed that the petitioner had a substantial probability of success, Scalia wrote, before he had been presented with the full factual record, before hearing the oral arguments of the attorneys on both sides.

We have clearly seen the partisan nature of our current Supreme Court, and many believe that it is the beginning of the end for its richly deserved and hard-earned reputation as a neutral arbiter and interpreter of the Constitution. The disingenuous nature of the opinion is evident in a number of ways.

The court offers to remand the case to the Florida Supreme Court but goes on to say that there is no humanly possible way for that court to issue a new opinion, authorize hand counts, and tally all the uncounted votes in time to meet the ultimate deadline for election of the president.

Further, it is ironic and painful that the many justices who have consistently stood as firm proponents of states' rights have interfered with the decision of the highest court of Florida as to how its citizens' votes should be counted. It is even more ironic that the court decided to intrude on an issue of state election law, where the overwhelming weight of judicial precedent is to allow such judgments to stand.

Finally, and most distressingly, the factual predicate of the court's decision was fundamentally incorrect. In deciding that the hand counts could not continue because there was not enough time to complete them, the court claimed that the Florida Supreme Court considered Dec. 12 to be the final deadline for certifying the state vote. That court did not say this - the US Supreme Court's reading is flatly wrong.

The political race between Al Gore and George Bush was a close one. Although Gore won the popular vote, Bush will win the necessary votes in the Electoral College. An equally divided nation looked to the Supreme Court for resolution, hoping that the court would bring clarity and objectivity to the matter, and would lend the weight of its moral authority to this divisive issue. Instead, the court deepened the rift by announcing a highly partisan judgment that, as the stinging dissent of Justice Stevens notes, defies analysis.

There is no doubt that this decision will influence the future composition of the court. In light of the partisan split in the country and in Congress, it is hard to imagine that President Bush could achieve confirmation to the court of anyone holding views comparable to Justices Scalia and Thomas. The strident nature of their language, their partisan approach to decision-making, and their lack of concern for consensus-building are all factors that would make it virtually impossible for any comparable candidate to receive Senate confirmation.

Ten years ago, in his final opinion as a member of the Supreme Court, Justice Thurgood Marshall offered a prophetic statement that seems apt today: "Power, not reason, is the new currency of this court's decisionmaking."

Power and partisanship have informed the court's opinion, and the decision calls into question the rationales our highest court uses to resolve disputes. This decision has tarnished the court's reputation, and has diminished the deference and respect previously commanded.

First published: December 17, 2000

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