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Five Justices of the Supreme Court guilty of treason? This is one of the central assertions of Vincent Bugliosi's provocative commentary on the U.S. Supreme Court's unprecedented intrusion into politics that handed George Bush the presidency. The book is an expansion of an article first written for The Nation magazine. While he admits "No technical crime was committed by the five conservative Justices," he continues that that is "only because no Congress ever dreamed of enacting a statute making it a crime to steal a presidential election." He goes on to argue that while not guilty of treason in the strict sense defined in the Constitution -- the only crime defined there, by the way -- there is little difference between giving aid and comfort to an enemy in time of war, and doing grave and unjustifiable damage to the nation "which the Justices surely did by stealing the office of the presidency for the candidate of their choice."
Bugliosi, the former Los Angeles deputy District Attorney who first came to public attention during his successful prosecution of Charles Manson, has written a scathing critique of the actions of the conservative Supreme Court Justices, O'Connor, Thomas, Rehnquist, Scalia, and Kennedy, in connection with the controversial 2000 election in Florida. He argues essentially that from the moment there was a possibility of Supreme Court involvement in determining the results of the election, the conservative Justices simply resolved to do whatever was necessary to anoint George W. Bush president.
Bugliosi details the significant history of several Justices in the Republican party. Clarence Thomas was a legislative assistant to Republican Senator John Danforth, who sponsored his nomination to the court. Justice O'Connor served three terms as a Republican member of the Arizona legislature and was co-chair of the Arizona committee to elect Richard Nixon president. Justice Kennedy was one of the highest-paid lobbyists in California during the time Ronald Reagan was governor, and worked actively to promote Reagan's anti-tax initiative.
Special vitriol is reserved for Chief Justice Rehnquist, who, Bugliosi points out, at Bush's inauguration was swearing in someone he "made sure would be president," -- an historic, if dubious, first. Bugliosi makes the case that Rehnquist committed perjury during his confirmation hearings in 1971. At the time of the hearings, Newsweek published a 1952 memo from Rehnquist to Justice Robert Jackson, concerning segregation. The memo was written at the time that the court was hearing arguments on the Brown vs. Board of Education case. Brown vs. Board of Education was the landmark civil rights case in which the Supreme Court ultimately ruled that 'separate but equal' facilities were illegal, and that schools should be integrated. Rehnquist's 1952 memo read,
I fully realize that it is an unpopular and unhumanitarian position for which I have been excoriated by liberal colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed.
Plessy v. Ferguson was an 1896 case in which the court held that segregation was legal as long as 'equal' facilities were provided. When Newsweek published the Rehnquist memo, Rehnquist wrote Senate Judiciary Committee chairman James Eastland, claiming that the memo held Jackson's views.
Rehnquist was questioned about the memo again in 1986 during his confirmation hearings for Chief Justice. Senator Ted Kennedy asked him, "Do the 'I's' refer to you?" Rehnquist answered, "No, I do not think they do." "You maintain the 'I's' refer, then, to Justice Jackson?" Kennedy continued. "Yes. Obviously something for him to say," Rehnquist said.
Bugliosi argues that Rehnquist knew that being associated with a segregationist position in 1971 would have prevented his appointment to the Supreme Court, so he lied in his letter to Eastland, and committed perjury in 1986. He backs up his assertion by citing
- Language in the memo that indicates Rehnquist was writing his own brief.
- Jackson was a moderate Democrat with no history of racist-leaning positions
- Jackson was known as an orator and writer, so it was unlikely he would have asked Rehnquist (then a first-year law clerk) to write a brief for him.
- Jackson's longtime personal secretary responded to Rehnquist's assertion in 1971 with "shock" saying he had "smeared the reputation of a great justice...."
- A draft of a concurring opinion on Brown v. Board of Education written by Jackson in 1954 was discovered in 1989. In it Jackson writes, "I am convinced that present day conditions require us to strike from our books the doctrine of separate but equal facilities."
- Jackson left his hospital bed on May 17, 1954 against his doctors' orders, to vote with his colleagues on the court to overturn Plessy in the Brown v. Board of Ed. case.
Bugliosi invokes the picture of Rehnquist, having committed an offense of such gravity, presiding over the impeachment trial of President Clinton for "lying about a private consensual sexual affair."
Interestingly, Bugliosi does not make much of the several immediate conflicts of interest on the Court with respect to Bush V. Gore. Justice O'Connor had made public statements that she wanted to retire, but only if a Republican would appoint her successor. Justice Thomas's wife was working on the Bush transition committee. Two of Justice Scalia's sons were working for the Bush campaign. In Bugliosi's view these facts are merely circumstantial evidence of motive, and are overshadowed by the evidence of the court's actions.
The conservative justices' "felonious conduct and state of mind," Bugliosi asserts, are primarily evident in (1) the lack of legal basis for their decision, and (2) the fact that it is, as he says "inconceivable" that they would have ruled in favor of Gore. Much of the book consists in providing supporting arguments for these assertions, including:
- The Florida State Constitution grants the Florida State Supreme Court the power to "provide any relief appropriate" when it finds that a challenge to an election is justified. It was under this provision of law that it had ordered a recount of rejected "undervotes" in disputed counties in Florida. The U.S. Supreme Court, according to its own rules, should only issue a "stay" if an applicant (here Bush) can show that in its absence he will suffer "irreparable harm." In granting the stay of the vote count Justice Scalia wrote that counting the votes would "threaten irreparable harm to petitioner ... by casting a cloud upon what he claims to be the legitimacy of his election." In so doing, Bugliosi argues, Scalia was implying that Bush either had won the election, or had a right to win it, even though the outcome was not then known, and that any vote count showing that Gore had won would "cloud" Bush's presidency.
- The decision reversing the Florida Supreme Court's ordered recount of undervotes was issued as an anonymous per curiam opinion. Per curiam opinions, Bugliosi points out, are usually reserved for unanimous opinions on relatively unimportant matters, or where the court wants to be very brief. Neither condition applied in this instance. Bugliosi writes that perhaps the five justices felt that by not attaching their names to a decision that robbed 50 million citizens of their votes they would some how mitigate their guilt.
- On November 22 Bush lawyers petitioned the U.S. Supreme Court to stop the limited recount that the Florida Supreme Court had permitted to continue beyond the deadline Florida Secretary of State Katherine Harris had originally tried to enforce -- November 17. At that time the court rejected one of their assertions, namely that the lack of a uniform standard of voter intent violated the equal protection clause of the Fourteenth Amendment of the U.S. Constitution. When it finally ruled in favor of Bush on December 12, albeit with regard to a different and more comprehensive recount, the decision was justified on the premise that it violated the equal protection clause of the Fourteenth Amendment. (!)
- Even if one accepts the equal protection argument, what was to prevent the court, as Justices Stevens, Souter, Ginsburg, and Breyer argued in dissenting briefs, from handing the case back to the Florida Supreme Court with instructions to define a uniform standard for determining voter intent? The conservative justices found a solution in a narrow interpretation of a Section 5 of the U.S. Code (3 USC 5) that says that controversy over electors should be resolved "six days prior to the meeting of the Electoral College" The Electoral College was scheduled to meet December 18, and the court was deliberating on December 12 -- therefore, they argued there was no time. Justice Stevens dissenting opinion argues that 3 USC 5 applies to Congress choosing among competing slates of electors, not to state vote recounts. Stevens wrote, "Indeed, in 1960 Hawaii appointed two slates of electors and Congress chose to count the one appointed on January 4, 1961, well after Title 3 deadlines...." Bugliosi agrees with the comments of Thomas Friedman of the New York Times who wrote, "The five conservative Justices essentially ruled that the sanctity of dates, even meaningless ones, mattered more than the sanctity of votes, even meaningful ones. The Rehnquist Court now has its legacy: In calendars we trust."
- The decision to intervene in internal Florida state affairs runs against the federalist principles that Scalia, Thomas, and Rehnquist would undoubtedly have applied in nearly any other case imaginable. For Bugliosi this is "persuasive circumstantial evidence of their criminal state of mind."
- If absence of uniform standards for determining voter intent truly violated the equal protection provision of the Fourteenth Amendment, nearly every election in the country would be invalid. Recognizing that their decision could not possibly embody a constitutional principle that could be used as a precedent, Bugliosi suggests, the court wrote that its ruling was "limited to the present circumstances." All other cases should rely on prior decisions of the court. This perhaps more than any other action, for Bugliosi, demonstrated that the "felonious five" were interested in granting relief to George W. Bush and no one else.
At times meandering, and at other times startling in its juxtaposition of detailed legal reasoning and political rant, Betrayal of America is a disturbing book, and probably an important one. In an attempt to characterize the magnitude of harm done to the nation and its institutions, Bugliosi writes
I told my daughter, Wendy, that what these Justices ended up doing was so monumentally base, so extraordinarily wrong and dishonorable that I wasn't gifted enough as a writer to describe it....I told her that in view of the immense measureless consequence of their act, and the greatness of their sin, it would take a Tolstoy, a Shakespeare, a Hemingway, to give people an illuminating glimpse into the interior of the soul and marrow of these five Justices.
But until the next Shakespeare writes The Tragical History of George II we have Bugliosi's impassioned and thorough chronicle.
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