Opinions

The Broken Branch

Catherine Yackira ‘24

Opinions Staff Writer

The six men and three women clad in black robes who sit on the highest bench of the nation have an undeniable mysticism about them. Nine of the greatest legal minds in our nation, who are purportedly guided by the sacred text of the constitution with no inclination of bias– just pure logic and reason. But this is just as flawed logistically as it is in practice. Supreme Court Justices have never been and never will be unbiased, untouchable readers of the law. If they “call balls and strikes” -as Chief Justice Roberts once said- the batter’s box seems to change shape depending on the case. They interpret the law in ways that fit their predetermined ruling, whether they do it purposefully or subconsciously. We must recognize that so that we can lift this veil of mysticism that the court has been gifted. They are flawed, biased individuals, just like the rest of us.

  The Supreme Court has a laundry list of shady decisions steeped in bias, but none is more brazen than the 2000 Bush v. Gore case. This case is perhaps more relevant now than ever given President Trump’s claim on Tuesday night that he will take this election to the Supreme Court. The 2000 election had razor thin margins throughout the night. Ultimately the race came down to Florida where just 600 votes separated Republican nominee George Bush and Democratic nominee Al Gore. Since the margin of victory was less than 0.5%, a machine run recount was triggered in accordance with Florida law. There was a legal question over the manual recount of selected counties and both Gore and Bush sent legal teams to Florida. The case went to the Florida Supreme Court which ruled that hand recounts of questionable ballots should proceed. Bush promptly filed suit which the Supreme Court took up the following day. Bush’s team argued that the Florida Supreme Court overstepped its power by authorizing a recount and the Gore team argued that the Supreme Court did not have the jurisdiction to decide a matter that had been settled at the state level. In a 7-2 decision the Supreme Court ruled that the Florida Supreme Court’s authorization of a hand recount was unconstitutional because the standards were different between counties. Citing the safe harbor provision of the 1887 Electoral Count Act (a state can be assured of having its chosen slate of electors recognized only if post-election disputes are resolved within thirty-five days of Election Day), the court ruled in a 5-4 decision that no recount could be done in time thus awarding Bush Florida’s electoral votes and making him the de facto winner. 

With this case the Supreme Court halted a recount, essentially throwing away thousands of votes and handing George W. Bush the election. It’s shocking to see all of the conservatives on the court agree that in this instance the court should meddle in a state’s business, but on issues of discrimination and others the Court chooses to stay silent because it doesn’t want to overstep its bounds. In order to approve the hold of the votes the Court ruled that irreparable harm would be done if the recount were to continue and there was some flaw in it. But this is the very definition of reparable harm. If the recount was flawed, wouldn’t it be better to fix the flaw and still count all the votes rather than simply halting the recount all together? The reason why the conservative court chose to do this is clear. They halted the recount because at the time Bush was leading by 327 votes. So if they halted the recount then, Bush would be the de facto winner of the election. If the recount had continued, that margin could have gotten slimmer and Florida could have flipped to Gore. The Court ruled that it was more important to abide by an obscure provision made in the 1800’s rather than counting every vote in a presidential election. If the court really believed that the recount as it stood violated the equal protection clause, why not just restart the recount? That would fall more in line with the equal protection clause than essentially throwing out thousands of votes and handing the election to their favored candidate. The Court didn’t care about the recount violating the equal protection clause, the court cared about handing an election to a Republican. 

  Last week in a 5-3 decision, Justice Kavanaugh wrote the opinion of the court in DEMOCRATIC NATIONAL COMMITTEE, ET AL. v. WISCONSIN STATE LEGISLATURE, ET AL. With this decision, the court ruled that absentee ballots in Wisconsin must be received by Election Day or they won’t be counted. This decision invalidated thousands of votes in a battleground state that was narrowly won by republicans in 2016. A highlight of Kavanaugh’s decision reads, “States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election,”(page 7 decision) This is notable for many reasons, not the least of which is the fact that it reveals Kavanaugh’s ineptitude of a basic understanding of how elections work. States never call elections on election day. They never have. The media calls elections on election day. States wait to confirm the result until weeks after the election after all of the mail-in ballots have “flowed in”. So, this is simply not true. However, Kavanaugh and the conservative court surely accomplished their goal. Perpetuating voter suppression and laying the groundwork for stealing the 2020 election, much like what happened in 2000 in Bush v. Gore. In fact, Kavanaugh cited William Rehnquist’s concurrence in Bush v. Gore (page 9)- a move that was even criticized by Chief Justice John Roberts. And funnily enough, Kavanaugh, Roberts, and Barret all worked on Bush’s side during the case in 2000… a shocking coincidence. 

  The Supreme Court is not holy. The justices on the court are all as biased as any politician, and because of that, court rebalancing is crucial. As it stands, the court is lost to six out of touch conservatives who will rule on behalf of the Republican party: not on behalf of Americans, not on behalf of the constitution. If the 2020 election goes to the Court, the 6six conservatives will be delighted to hand another illegitimate election to the Republican party. Court reform is long overdue.  

https://www.cnn.com/2020/10/17/politics/bush-v-gore-barrett-kavanaugh-roberts-supreme-court/index.html

https://www.vanityfair.com/news/2020/10/brett-kavanaugh-wisconsin-supreme-court-trump-wins-election

https://www.oyez.org/cases/2007/07-290

https://www.law.cornell.edu/supct/html/00-949.ZD2.html

https://www.britannica.com/event/Bush-v-Gore

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