Supreme Court Cherry-Picks Jurisdiction Facts and Law

U. S. SUPREME COURT DECISION BUSH v. GORE

James Constant

ConstantRCS@cs.com

The Supreme Court's ruling is wrong for arbitrarily invokingthe law, by arbitrarily exercising constitutional jurisdiction, by arbitrarily refusing to decide all claims presented, and by arbitrarily using equal protection to decide a political question.

Bush's brief asked the Supreme Court (SCT) to rule on two claims, first, the Article II Constitutional claim whether the Florida Supreme Court (FSCT) replaced Florida's election laws "with laws of its own invention" and, second, the equal protection claim whether differing Florida vote counting standards violated one-man one-vote law. The SCT arbitrarily, without constitutional jurisdiction, refused to decide the "making law" claim but granted the "equal protection "claim.

By arbitrarily exercising appellate jurisdiction, the SCT not only preserved judicial intervention in political questions but did so in violation of its earlier decision, in Baker v. Carr, 369 U.S. 186 (1962), which told us that its constitutional duty to resolve controversies excludes political questions. The making of laws and the making of standards for vote counting are political not judicial matters. Thus, for the second time, the SCT took up two political questions over which it lacked constitutional jurisdiction. But even if constitutional jurisdiction was present, which it was not, the SCT's decision made a mockery of the law.

Had the SCT granted the making law claim it would have rebuked judicial activism, as favored by conservative justices. Had the SCT denied the making law claim it would have condoned judicial activism, as favored by liberal justices. Any decision would be a split one and no decision was made on this claim. By arbitrarily exercising appellate jurisdiction over this claim and by arbitrarily refusing to decide the claim, the SCT was in violation of its constitutional duty to resolve controversies between individuals Bush and Gore. Thus, for the second time, the SCT ducked the question. The "rule by judges" was left intact and the "rule of law" was ignored by the SCT (and the FSCT). As before, courts remain free to replace state laws with laws of their own invention.

The SCT found that the FSCT's plan for recounting ballots violated the Equal Protection clause of the constitution, because some votes would be counted under different standards than would others. Had the SCT denied the "equal protection" claim it could have done so only by invoking its lack of constitu- tional jurisdiction on grounds the counting of votes is a political question excluded from the special category of historic rights, such as race, gender, religious affiliation, and national origin. Instead, by ignoring the obvious political question and thus its lack of constitutional jurisdiction, the SCT's Per Curiam 7-2 opinion ruled that "Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional . . . we reverse the judgment of the FSCT". The "rule by judges" was left intact and the political and constitutional jurisdiction questions were ignored by the SCT (and FSCT). As before, courts remain free to decide political questions under the Equal Protection clause.

The SCT could not impartially and directly rule that the FSCT wrongly made "laws of its own invention" because that would bury Marbury v.Madison 1 Cranch 137 (1803), the decision that gives courts the power to "interpret" laws and to say what the laws mean. Yet, MARBURY MUST GO, because it replaces the "rule of law" by the "rule of judges". BURY MARBURY THE SOONER THE BETTER. Nor could the SCT impartially and directly rule that the FSCT wrongly granted equal protection of all voters, counted and uncounted, on grounds of lack of constitutional jurisdiction, because that would stop judicial intervention into political questions, and would remove judicial powers from powers that belong to the states, imperfect as state rules may be. Instead, by arbitrarily ignoring its lack of constitutional jurisdiction over political questions, and by arbitrarily ignoring the separateness of political questions and historic protected rights, the SCT arbitrarily held that the FSCT wrongly granted equal protection of voters because "the voting standards were different". Yet, political questions must be removed from the judiciary because they replace the "state rule" by the "rule of judges".

These arbitrary judicial acts were not altogether unexpected. The SCT was being asked for the second time to bury themselves and get lost. The first time around they ducked artfully, by ignoring the political question and by asking the FSCT for its clarification of grounds, and the chickens dutifully came back home to roost. The real questions behind this electoral fiasco are: DO WE WANT JUDGES WITH DISCRETIONARY POWERS, first, TO DECIDE POLITICAL QUESTIONS? and, second, NOT TO DECIDE CLAIMS BEFORE THEM? These questions are above Bush and Gore. They go to the heart of America's judicial soul. The chickens will be back again.

In their desire to capture the presidency, the Democratic and Republican parties each made claims it thought would bring it electoral victory. They were not concerned about the rule of law but only in winning. Otherwise, both Bush and Gore, and their distinguished constitutional attorneys, should denounce the SCT's decisions as violations of the rule of law. Had the rule of law and constitution prevailed, the SCT would have declined to decide the "making law" and "equal protection" claims for lack of constitutional jurisdiction, leaving it up to the political departments to solve the political questions surrounding the making of laws and voting standards. Ironically, while the Republicans have always mouthed against judicial tyranny they now, having won, remain silent about the judicial fiat that gave them victory. It is now the Democrats who complain about judicial tyranny. But they too complain not because the judicial fiat gave them defeat but because they did not win. The law is of no concern to either party--only winning is. If the two parties are sincere THE SPLIT CONGRESS AND THE NEW PRESIDENT SHOULD REIGN IN THE JUDICIARY. That they are not sincere is evident by the fact that they remain silent about the SCT's arbitrary handling of Bush's claims at bar. Both parties have been well served by the "rule of men".

The argument is heard that the "rule of men" is more pragmatic because the "rule of law" is anarchic. Imagine, they say, what would happen if the SCT declined to decide the case and left it to the political departments to solve the political questions. The country would be in a state of anarchy for months and years and we would be deprived of a "smooth transition of power", a great inauguration swearing in and ceremony, and business as usual. There is some merit in this argument as it preserves the status quo. We have been operating under a rather mild "rule of men" for some time now and it has worked. Remember, wealth controls and the nation is rich, powerful, and peaceful. However, these conditions might not always be present. On balance, therefore, the argument for a "rule of men" in exchange for a working system loses force because it opens the door to authoritarian dictatorship, much harsher than the ones we have seen to date.