On the subject of memorable personal epiphanies, I have to include the insight that struck me in 2000.
It happened when the Supreme Court decided the case of Bush v. Gore and thereby awarded the presidency to George Bush.
The presidential election that year had ended in a virtual tie. In Florida, the race was too close to call. State and county election officials were in an uproar. Both political parties claimed victory and alleged improprieties by the other side.
The Florida Supreme Court then stepped in (wisely and fairly, I thought) and ordered a statewide recount of the ballots cast for President.
Within hours, by a 5-4 vote of the conservative justices, the U.S. Supreme Court delayed the recount.
Within days, by a 5-4 vote of the conservative justices, the U.S. Supreme Court stopped the recount altogether.
With the recount cancelled, Florida’s Republican Secretary of State was free to declare George Bush the winner of Florida’s 25 electoral votes.
Bush thus had 271 electoral votes, one more than the 270 votes required to become President.
I was stunned and appalled.
Prior to Bush v. Gore, I considered the Supreme Court to be a bastion of honor and integrity unlike any other institution in government. In my mind, the court was unquestionably above politics.
Why did I believe that? Because I grew up under the Warren Court, which systematically expanded civil rights and civil liberties, ignoring political and public opposition. The Warren Court had the integrity to do the right thing.
But after the epiphany of Bush v. Gore, I understood that the Supreme Court is not a symbol of incorruptibility at all.
It is merely a group of political appointees who are quite capable of abandoning ethics if the stakes are high enough.
I wasn’t alone in seeing the Bush v. Gore decision as shamefully political.
Justice John Paul Stevens voted in the minority on Bush v. Gore. He said in his dissent, “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, 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.”
A letter from 300 Professors of Law, Republicans and Democrats, said that “when a bare majority of the U. S. Supreme Court halted the recount of ballots under Florida law, the five justices were acting as political proponents for candidate Bush, not as judges. It is not the job of a Federal Court to stop votes from being counted.”
Another law professor wrote, “There is really very little way to reconcile this opinion other than that they wanted Bush to win.”
In retrospect, I shouldn’t have been under any illusion about the votes of Rehnquist, Scalia, and Thomas. Their views and agendas are always clear. Nor should I have been surprised when Kennedy, often the maverick, joined them.
But I was genuinely shocked when Justice O’Connor cast the fifth vote and blocked the recount. Like a lot of people, I thought she was made of better stuff.
Had she not gone over to the Dark Side, she might be Chief Justice today.
From that epiphany, I learned a lesson: holding the court and the justices in high esteem had been a naive mistake. I know better now.
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