An Open Letter To The American People

Why Censure?
 
Letter of Introduction
 
The Counts of Censure
 
I. Applicable Laws and Principles
 
II. The Legal Controversy in Florida
 
III. The U.S. Supreme Court's Intervention
 
IV. The U.S. Supreme Court's Decision
 
V. The Anomalous Nature of the Per Curiam Rulings
 
VI. The Tragic Impact of the Supreme Court's Rulings
 
VII. The Voice of Memory
 
Therefore it is resolved that . . .
 






Act Now
PDF Version of Resolution
Acknowledgments
Dedication
Media
Contact Us


Fellow Concerned Citizens:


It is time to take Supreme Court Justices Kennedy, O'Connor, Rehnquist, Scalia, and Thomas to the proverbial woodshed.

Since handing down Bush v. Gore, the Court's rulings (most notably, Board of Trustees of the Univ. of Alabama v. Garrett) demonstrate that these five justices have set out to usurp the powers of the Congress and the states in the name of their reactionary agenda, improvising rationales as they go. Their conduct fortifies the growing consensus among legal scholars, political scientists, and ordinary citizens that the five-member majority responsible for Bush v. Gore is out of control and even threatens the very continuation of our democratic experiment.

We recognize that for many, especially progressives, this is an uncomfortable realization in view of the historically constructive role of the Supreme Court in post-war American history—in particular, the civil and individual Constitutional rights gains made under Supreme Court Chief Justice Earl Warren. We too respect and strongly support the power of the Supreme Court to hear and independently decide any judicial question before it, no matter how politically controversial.

However, in our view it would be utterly irresponsible and dangerous for concerned citizens to tolerate quietly Supreme Court justices who willfully and cynically appropriate the powers of other branches of government by taking upon themselves the resolution of purely political questions, as these five justices did in Bush v. Gore. We wholeheartedly agree with New York University law professor Larry D. Kramer that failure to confront these five partisan, power-hungry justices would be horribly misguided and naive. In an article entitled "The Supreme Court v. Balance of Powers", which appeared in the March 3, 2001 issue of the New York Times, Professor Kramer warns:

[T]he conservative court's decisions have met with only tepid responses from critics in the rest of government. This may be because liberals and moderates are inhibited by a false belief that the Supreme Court is a fragile institution that needs to be protected from public censure. [. . .] Many liberals now assume that criticizing the court plays into the conservatives' hands. Precisely the opposite is true. Conservatives never hesitate to attack a court that does things they don't like. Just ask the justices of the Florida Supreme Court. Liberals never used to hesitate, either. By sitting on their hands now, critics merely encourage the court's conservative majority. [. . .] We need to hear from our political leaders.
Liberals and moderates alike must awaken—now—from their enabling slumber. The time for quietude and restraint is over. A line must be drawn, and the locus of protest must be the unforgettable, outlandish, overreaching decision of Bush v. Gore. The five justices responsible for this ruling engaged in a dangerous act of judicial imperialism, one that tragically altered the course of American history. And, like fingerprints left behind on a smoking gun at the scene of a crime, Bush v. Gore created a damning bill of particulars against the five justices, one amply justifying a forceful Congressional response. Specifically, Justices Kennedy, O'Connor, Rehnquist, Scalia, and Thomas:
1) seized federal jurisdiction where the power to resolve the issues in the case was committed to the state of Florida and Congress, ignoring highly relevant precedents dictating that the dispute be prudentially classed as a non-justiciable political question;
2) abandoned their long-espoused allegiance to principles of federalism in overturning the decision of the Florida Supreme Court, and, having done so,
3) prevented the correction of repairable, alleged defects in Florida's vote counting procedures by misrepresenting the Florida Legislature's intent as to whether recounts in presidential election contest actions must be concluded by December 12, 2000; as Florida Supreme Court justice Leander Shaw later pointed out, there was no such legislative intent expressed in Florida's statutes or ever mentioned in the majority opinions of the Florida Supreme Court.
In other words, for partisan political reasons this "Gang of Five" wanted Bush to win and made sure he did. Period.

Over 600 of the nation's law professors likewise affirmed in a statement published in major newspapers in January that the Bush v. Gore case simply did not present the Supreme Court with a judicial question for resolution at all—it presented a classic non-justiciable political question. In choosing to abjure restraint, the Supreme Court exercised powers they do not possess under any reasonable reading of the Constitution's separation of powers provisions and case law precedents going back to the 1840s. While likely nothing can now be done to undo the effect of the illegitimate Bush v. Gore edict, we believe these justices must, at the very least, face a stern reprimand. Otherwise, their unchallenged actions mock the American commitment to representative government and separated centers of power.

Therefore, if the proper balance of governmental power between and among the three federal branches and the states is to be restored, and we are to regain our standing as an exemplar of democratic ideals and the rule of law, we must begin by introducing a Congressional resolution of censure against Justices Kennedy, O'Connor, Rehnquist, Scalia, and Thomas for their betrayal of the American people and the Constitution in Bush v. Gore. We of course recognize that passage may not be possible until Democrats regain control of Congress. But the chances of this occurring would be magnified were we the people to take a definite stand against the five justices who wrongfully prevented the 2000 presidential election from being concluded in conformity with prescribed constitutional and statutory procedures.

We have drafted what we believe to be a prudent, measured resolution of censure against the five justices for their wrongful conduct in Bush v. Gore. This resolution is posted online here.

After reviewing our work, we hope you'll agree to contact your members of Congress and ask that they take a look at our resolution and support its passage. If you're not sure what to write, here's one possible version of a contact letter. Our heartfelt thanks in advance.

The price of liberty is eternal vigilance.
 

Eric C. Jacobson 
Active member, California and District of Columbia bars 
ecjla@aol.com

David Harnden-Warwick 
Writer, Activist 
davidh-w@attbi.com


February 17, 2001



The Resolution of Censure:
The Counts of Censure
I. Applicable Laws and Principles
II. The Legal Controversy in Florida
III. The U.S. Supreme Court's Intervention
IV. The U.S. Supreme Court's Decision
V. The Anomalous Nature of the Per Curiam Rulings
VI. The Tragic Impact of the Supreme Court's Rulings
VII. The Voice of Memory
Therefore it is resolved that . . .