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 . . .
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