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April 19, 2015


The three Supreme Court cases that were the worst ever decided were (in my opinion) Dred Scott v. Sandford (decided in 1856), Plessy v. Ferguson (decided in 1896) and Bush v. Gore (decided in 2000). No one is alive today who can remember the Dred Scott and Plessy cases, but most of us alive today well remember the Bush v. Gore case; indeed we are still living with the tragic consequences of the Supreme Court’s holding in that case which elected Bush.

Dred Scott and Plessy with their separate but equal doctrines have long since been corrected but Bush v. Gore’s political decision by the court was not susceptible to correction and we have reaped a bitter harvest as a result of the court’s unconstitutional interference in the electoral process. Bush was elected, but not by the people. He was elected by the Supreme Court in a first-ever Equal Protection case brought involving vote count, an area constitutionally under the exclusive jurisdiction of state supreme courts and worse, by a party who had no standing to bring suit in any event. Fair minded observers estimate that but for the Supreme Court order to cease counting ballots Gore would have won the election by about 35,000 votes, but those 35,000 voters were overruled by five unelected judges none of whom was eligible to vote in Florida.

Shortly after the holding in Bush v. Gore, I as a long-time member of the Supreme Court’s bar sent in my resignation to the Supreme Court Clerk with the notation that I did not wish to remain a member of the bar of a court that itself acted unconstitutionally. I was in a fit of pique when I sent in my resignation and have occasionally wondered since if I acted hastily. Just recently I have run across a book, Men in Black, by Mark R. Levin, which confirms that my resignation was the right thing to do. I should have resigned sooner.

Levin’s book is copyrighted in year 2005 and its general right wing theme is that the Supreme Court has assumed powers not given it in the Constitution. He makes an exception for the court’s election of George Bush, of course, ascribing such a plainly wrong finding by the Supreme Court as one necessary to keep the “rogue” Florida Supreme Court from electing Gore. He has little to say about the Florida Supreme Court’s exclusive jurisdiction in counting votes or how the rogue Supreme Court unconstitutionally assumed jurisdiction to stop such count which elected Bush to the Oval Office. He thus selectively departs from his general theme that the Supreme Court has assumed powers beyond its constitutional grant via a contorted narrative of mixed fact and law only a contortionist could appreciate in order to arrive at a pre-ordained end, to wit: the election of George Bush.

Bush v. Gore should have been dismissed peremptorily on numerous grounds and never have been heard on its merits (such as they were). It wasn’t, and we have since as a result suffered through unnecessary and costly wars as measured in barrels of blood and trillions in treasures, recession, unemployment, a middle east in chaos etc., all thanks to the five judges who halted an election by votes of real people by votes of their own.

Levin’s spurious defense of this particular decision since he is otherwise opposed to what he calls judicial tyranny plainly betrays his right wing bias since as a lawyer in his heart of hearts he has to know that Bush v. Gore was decided upon much the same kind of incoherent babble of fact and law as Dred Scott and Plessy.  As a sometime originalist  (one who demands that specific powers be laid out in the Constitution for  legislative acts to pass court muster) like Justice Scalia often claims to be, I here note that the Constitution is silent on the regulation of jet plane noise, railroads, net neutrality and other such innovations since 1789. Shall we, speaking of chaos, require amendments to the Constitution to add each new innovation to its language in order to give Congress the right to pass laws and regulators to regulate?

Part II of this saga will continue with a discussion of some background on how Bush v. Gore could happen. Stay tuned.    GERALD    E


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