Whereas said Supreme Court's anomalous per curiam ruling on the merits of December 12, 2000 derived from a preceding legal impropriety, namely, that of daring to assert—against the dictates of both precedent and prudence—federal judicial jurisdiction over the Bush v. Gore case in the first place; any fair reading of the controlling and persuasive legal authority regarding federal justiciability (summarized in this section), we submit, compels the conclusion that the Supreme Court herein committed an improvident, reckless, derelict, and intolerable act of usurpation and subversion of the lawful powers rightfully belonging to the states and to another branch of the federal government coequal with the court (Congress)—constituting an assault on the citadel of checked-and-balanced, separated powers and ordered liberty indispensable to our longevity as a nation of laws; viz.:

Although John Marshall wrote in Marbury v. Madison that the United States Supreme Court had authority to "say what the law is" (adjudicate an arguable federal Constitutional question), the doctrine of judicial review simply cannot—consistent with the separation of powers—validly empower the Supreme Court of the United States to rule unconstitutional a state Supreme Court's interpretation and enforcement of state statutes governing the manual recounting of votes in a presidential election (i.e., the election that decides the head of another entire branch of the federal government), especially where, as here:

(i) the state Supreme Court had prescribed a reasonable, judicially supervised statewide recount of previously uncounted ballots (undervotes);

(ii) state judges conducted the adjudication of disputed ballots under the superintendence of a single trial court judge; and

(iii) explicit recourse was available to political dispute resolution procedures prescribed by federal statutes (3 USC, sections 5, 6, and 15) that committed the mediation of ongoing controversies concerning the bona fides of any state's slate of presidential electors to the Congress and to the states;

Whereas, from the beginning of our Republic, the United States Supreme Court has taken care not to frivolously or rapaciously invade the province of state Supreme Courts, and where it has intervened, not to overturn the rulings of state Supreme Courts; see, e.g., Herb v. Pitcairn, 324 U.S. 117 (1945), which held that state Supreme Courts have the final authority over all state court decisions that rest on adequate and independent state grounds and that the United States Supreme Court is without jurisdiction to even take such a case for review, much less reverse it; and McPherson v. Blacker, 146 U.S. 1 (1892), wherein the U.S. Supreme Court asserted jurisdiction and upheld the state Supreme Court's decision that a state could constitutionally select its presidential electors via a district-by-district vote rather than a statewide vote; see Justice Frankfurter's discussion in Baker v. Carr emphasizing this ratification of the state Supreme Court on the merits as a key factor rendering the McPherson case justiciable in the first place, 369 U.S. 186 (1962) Frankfurter dissent at p. 285 ["To read with literalness the abstracted jurisdictional discussion in the McPherson opinion reveals the danger of conceptions of' justiciability' derived from talk and not from the effective decision in a case. In probing beneath the surface of cases in which the Court has declined to interfere with the actions of political organs of government, of decisive significance is whether in each situation the ultimate decision has been to intervene or not to intervene."]; compare, Bush v. Gore, where the U.S. Supreme Court overturned the reasonable decision of the Florida Supreme Court;

Whereas, in any event, from the beginning of our Republic, the United States Supreme Court has prudentially abstained from ruling upon "political questions"—disputes the resolution of which appropriately belonged in their entirety to either or both of the other two federal branches of government or the states—where resolution by the Supreme Court would intolerably strain the framework of separated powers; see, e.g., Taylor v. Beckham, 178 U.S. 548, 571; No. 603, (May 1, 1900) [the disputed outcome of a contested state gubernatorial election held non-justiciable]; Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 569 (1916) [the constitutionality of using a referendum to override a Congressional districting plan enacted by the state legislature held non-justiciable]; and Luther v. Borden, 7 How. 1 (1849) [a trespass case that pivoted on the question of whether a state government constituted by limited or universal male suffrage was the duly constituted state government held non-justiciable; the latter case arose out of the Dorr Rebellion in Rhode Island in 1841–1842; see Woodbury opinion, at 7 How. 1, 51–53 (dissenting in part but agreeing with the Court regarding the inappropriateness of judicial inquiry into the issues)]; see generally Baker v. Carr, 369 U.S. 186 (1962) Brennan majority opinion, Part IV, Justiciability, pp. 208–237, and Frankfurter dissent at pp. 266–330. The "political question" doctrine is summarized in Bickel, Foreword: The Passive Virtues, 75 Harv. L. Rev. 40, 42 et seq., 1961), and further discussed in Bickel, The Least Dangerous Branch, p. 184;

Whereas, but for the Supreme Court's unilateral intervention that sealed the outcome of the 2000 presidential election, the legal case and controversy between the candidates should and would have otherwise been appropriately resolved in the first instance by the results of the completed manual recount recorded in the final disposition of the Florida Supreme Court case, and ultimately, in all probability, in a political manner by Congress and the state of Florida as set forth by Congress in the Electoral Count Act of 1887, 3 USC, Secs. 5, 6, and 15;

Whereas the case and controversy presented to the U.S. Supreme Court in Bush v. Gore thus met—if not exceeded—the criteria defining a classic non-justiciable "political question," as set forth in Davis v. Bandemer, 478 U.S. 109 (1986), citing Baker v. Carr, 369 U.S. 186 (1962), in that:
 

(i) the appellant was asking the Supreme Court to overturn (on grounds of an alleged violation of the U.S. Constitution) a reasonable ruling of the Florida Supreme Court regarding the manner of Florida's selection of presidential electors, which selection process is "to be decided by a political branch of the government coequal with [the U.S. Supreme] Court," Davis v. Bandemer, 478 U.S. 109, 122, citing 369 U.S. 186, 226 (Brennan majority opinion); here, the manner of Florida's selection of presidential electors was jointly ascribed by law to not one but two "political branch[es] of the government coequal with [the U.S. Supreme] Court"—the states in the first instance pursuant to U.S. Constitution Art. II, Sec. 1 and Amendment XII (according to Florida law, the Florida Supreme Court had plenary authority to reasonably construe and enforce Florida statutes governing the selection of presidential electors to effect the Florida Legislature's intent), and ultimately Congress (in its role as arbiter of the bona fides of all states' slates of presidential electors) pursuant to 3 USC, Secs. 5, 6, and 15; and

(ii) if decided by the Supreme Court, the decision in the case or controversy "risk[ed] embarrassment of our government abroad, [and] grave disturbance at home," Davis v. Bandemer, 478 U.S. 109, 122, citing 369 U.S. 186, 226; here, the Supreme Court decision shattered the international moral authority by which the United States has historically advocated free, fair and democratic elections abroad (see editorials "Let's boycott America," New Statesman, 25 December 2000; "Faith of Fathers," The Russia Journal, 16 December 2000; "Beware Bush's American dream: This President is not to be trusted," The Guardian (UK), 21 January 2001; "Right-wing coup that shames America," The Observer (UK), 24 December 2000), and triggered the largest outpouring of protest against a presidential succession since the Vietnam-haunted second inauguration of Richard Nixon in January, 1973 (see "Protesters in the Thousands Sound Off in the Capital," New York Times, January 21, 2001; "Thousands mock president with cries of 'Hail to the Thief'," San Francisco Chronicle, January 21, 2001; "Fear and Furs: The Pomp and Protest of W's Stolen Inauguration," LA Weekly, January 26–February 1, 2001; and further, a February 6, 2001 Gallup poll showing George W. Bush with the "highest initial disapproval of any president since polling began" [http://www.gallup.com/Poll/releases/pr010206.asp];

Whereas the federal judiciary is the branch of the tripartite federal government furthest removed from the democratic process, in that the officers of said branch are judges appointed for life by the president and confirmed by the Senate, and said judges are neither elected nor subject to ratification by a vote of the people, it is therefore a form of tyranny and a dire threat to the institutional framework of liberty whenever such unelected federal judges—in this case, justices of the United States Supreme Court—abjure prudential restraint and recklessly choose to decide "political question" cases such as Bush v. Gore; in so doing they usurp the powers and sap the vitality of other democratic branches of the federal government (here, Congress) and of the states, the top officials of which, including many state Supreme Court justices, are elected or subject to periodic ratification by votes of the people therein (e.g., the justices of the Florida Supreme Court are each subject to a retention vote every six years);

Whereas the harm to liberty and democracy is especially acute when, as here, the "political question" case decided by five unelected justices of the Supreme Court imprudently and outrageously invaded the powers of the states and Congress over the selection of the democratically elected head of the Executive branch, the President of the United States—a branch of government commensurably empowered with the federal judiciary, and one which serves to check and balance the powers of the federal judiciary by way of the president's power to nominate federal judges, United States Supreme Court justices, and the Chief Justice of the United States;
 

Next page: V. The Anomalous Nature of the Per Curiam Rulings
 

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 . . .