Good and Dead: Pathbreaking Woman Who Led the Way toward Judicial Subversion of Democracy

 

The obituary page of The Massachusetts Spy

By Obituary Editor Luke Reschuss with Legal Correspondent Saori Shiroseki

Justice Sandra Day O'Connor, who provided the deciding vote for the judicial overthrow of democracy that led to the installation of George W. Bush and Dick Cheney, died last week at 93.

That should have been the lede for all her obituaries.  It was the most blatantly political and poorly justified Supreme Court decision since Dred Scott.  But O'Connor, in death as in life, led a charmed life.

The normally authoritative New York Times mentioned Bush v. Gore beginning in...paragraph 47.  It was there though:

The Rehnquist court’s federalism revolution was in full swing as one of the most disputed chapters in Justice O’Connor’s career unfolded: the Supreme Court’s resolution of the 2000 presidential election in Bush v. Gore.

Thank you, Sandra!

At an election night party, Justice O’Connor was reported by Newsweek to have expressed dismay at the news that Vice President Al Gore seemed to be narrowly winning the race; her husband reportedly explained that the couple wanted Gov. George W. Bush to win the election so that they could retire to Arizona and a Republican president could fill her seat. Justice O’Connor later denied the account and had shown no evidence at the time of any interest in retiring.

In any event, given the favor with which the Supreme Court majority had usually viewed states’ rights, many were surprised when the court agreed to hear Mr. Bush’s challenge to the way Florida election officials and judges were untangling a statistical tie for the state’s 25 crucial electoral votes.

After the Florida Supreme Court ordered a statewide recount, and with the Republican candidate a hairbreadth ahead, Justice O’Connor and the four most conservative justices granted the Bush team’s request for a temporary stay. Three days later, late on the night of Dec. 12, the court issued its 5-to-4 opinion declaring that the recount, lacking a uniform standard for evaluating the contested ballots, violated the constitutional command of equal protection and could not proceed. ...

In 2013, seven years after she left the court, Justice O’Connor for the first time, at least in public, expressed doubt about the wisdom of the decision. “Maybe the court should have said, ‘We’re not going to take it, goodbye,’” she told The Chicago Tribune’s editorial board.

Her comment stopped short of a full-fledged repudiation of her own vote. But it certainly reflected a lingering regret about the legacy of the ruling, which, she said, “gave the court a less than perfect reputation.” 

She told the Chicago Tribune a little more:

She added, according to the paper’s account, “Obviously the court did reach a decision and thought it had to reach a decision. It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”  

Ya think?

There's a lot to unpack here, some of which the Times, to its credit, tries to do.  First it notes, albeit in diplomatic language, the Republican-bent Court's blatant hypocrisy in advancing the supposed rights of states when they tried to f*** criminal defendants or minorities while stomping all over those same supposedly-sacred rights when they threatened to interfere with the coronation of the Republican who lost the popular vote by 500,000. 

To flesh out the Times's account a little, let's recall the results of the flawed punch card technology used in Florida at the time:

Thank you Sandra!

When Bush won Florida by just 1,784 votes, the razor-thin margin prompted an automatic recount per state law. That recount shrank the margin even more, reducing Bush’s lead to a mere 327 votes. After a flurry of lawsuits, the Florida Supreme Court weighed in, ruling for manual recounts throughout the state. Bush’s legal team appealed to the Supreme Court, asking for the recounts to stop and arguing that Florida was reaching beyond its election authority. 

The manual recount changed the totals as election boards examined disputed cards to determine the voter's intent when, for example, the voter had failed to punch the little paper square (or chad) hard enough to separate it from the ballot.  Such votes needed to be examined one-by-one to determine the intent of the voter – a clear and correct standard.

While that recount was proceeding, the Bush team, led by its mouthpiece John Roberts (whatever happened to that guy btw?) mounted a scorched earth legal attack not to ensure that the recount proceeded according to fair and reasonable standards but to stop it dead in its tracks.  You'd think they were worried about what such a recount would show.

As the Times says, O'Connor provided the decisive votes to stop the recount before it finished first temporarily and then forever, leaving Florida with no alternative but to certify George W. Bush as the winner.  

Don't worry – it all worked out great.  Bush, realizing that he had been installed in an undemocratic and lawless process, cautiously ruled in a modest and bipartisan fashion and did not at all fail to protect the nation from the worst terrorist attack in its history, start a war of aggression against a country that had nothing to do with the attack, and employ unspeakable and lawless tortures including waterboarding and rape against defenseless detainees, almost all of whom were later released despite Dick Cheney's growled lies about how dangerous they were.

[Intern, please fact check – L.R.]

But it's not fair to dwell on the death and agony that Bush visited on hundreds of thousands thanks to her without looking at the legal basis for her decision.

Actually, it is.  Here's the Times's verdict on Bush's blood-drenched first term:

We look back on the past four years with hearts nearly breaking, both for the lives unnecessarily lost and for the opportunities so casually wasted. Time and again, history invited George W. Bush to play a heroic role, and time and again he chose the wrong course.

They also warned:

We have specific fears about what would happen in a second Bush term, particularly regarding the Supreme Court. The record so far gives us plenty of cause for worry. Thanks to Mr. Bush, Jay Bybee, the author of an infamous Justice Department memo justifying the use of torture as an interrogation technique, is now a federal appeals court judge. Another Bush selection, J. Leon Holmes, a federal judge in Arkansas, has written that wives must be subordinate to their husbands and compared abortion rights activists to Nazis.

Yeah, we'll get to that.  We'll just note that packing the courts with ideological hacks and hatemongers was not invented in 2017, despite what our Wonderful Republican Allies are now telling us.

After we consider the legal basis for O'Connor's fateful decision, which Nino Scalia, the reactionary Republican Catholic extremist who voted with the majority, summed up in his usual pithy fashion:

The late Justice Antonin Scalia joined the majority opinion but privately called the equal protection rationale, “as we say in Brooklyn, a piece of shit,” according to “First,” a well regarded 2019 biography of retired Justice Sandra Day O’Connor. 

As we say in Boston, go f*** yourself Nino.

Justice Stephens expanded on Scalia's theme:

In the interest of finality, however, the majority effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent–and are therefore legal votes under state law–but were for some reason rejected by ballot-counting machines. ...nothing prevents the majority, even if it properly found an equal protection violation, from ordering relief appropriate to remedy that violation without depriving Florida voters of their right to have their votes counted.

Bush v. Gore, 531 U.S. 98 (Stephens, J., dissenting).

Thank you, Sandra!

O'Connor's decision to leave votes uncounted wasn't required by the Equal Protection Clause or any other law.  It was a naked assertion of Republican political power.  It paved the way for today's Republican judicial coup, a coup that she furthered by retiring late in the administration of the clod she put in office, only to be replaced by Sam Alito. 

In 2000, it was shocking that the Supreme Court would issue a decision so transparently biased and political.  By lending her considerable prestige as a “moderate,” to the creation of today's monstrous politically bent court (see every other paragraph of her obituary other than the ones about Bush v. Gore)  O'Connor legitimized and normalized the transition, to the point where it is accepted with a shrug.

The outrageously corrupt and politically bent Sam Alito not only inherited her seat but also built on her legacy.  Now the court is willing to sit as an unelected court of political revision, empowering itself to overturn actions by the political branches even in cases when it transparently lacks the power to to do so.

Most people don't notice this unconstitutional seizure of power.  Most of the ones that do say there's nothing we can do about it.

If you're looking for Sandra O'Connor's legacy, you need look no further than women forced to carry lethally defective fetuses to term thanks to the Court she helped build.

If you think we're being a tad harsh in consigning her to an eternal damnation in the fiery furnaces of Hell, remember she's from Arizona.  She'll just think she's home.