A Draft Resolution of Congressional Censure Against 
United States Supreme Court Justices 

Kennedy, O'Connor, Rehnquist, Scalia, and Thomas 

for Their Betrayal of the American People 
and the United States Constitution 
Displayed in the Decisions of 
Bush v. Gore


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 . . .
 






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V. The Anomalous Nature of the Per Curiam Rulings in View of the Five Justices' Jurisprudential Philosophy, and Other Indicia of Irregularity Surrounding Said Rulings and Said Justices.


Whereas the five justices comprising the majority in the Bush v. Gore per curiam rulings have each long espoused unwavering allegiance to the jurisprudential principles of federalism and dual state/federal sovereignty, a central tenet of which doctrine is the sanctity of sovereign state prerogatives against encroachment by the federal government; and said tenet counsels either prudential abstention from adjudication or rejection on the merits of a constitutional challenge to a ruling of a state Supreme Court such as the one brought by the Republican Party's candidate for president, George W. Bush;

Whereas said per curiam rulings, reached and justified in the course of reduction to written opinion, required the authors to flagrantly transgress and contradict their ostensible firm allegiance to jurisprudential principles of federalism and dual sovereignty; said rulings flew directly in the face of, in Justice Ginsburg's words:
 

[T]he ordinary principle that dictate[d] its proper resolution: Federal courts defer to state high courts' interpretations of their state's own law. This principle reflects the core of federalism, on which all agree. "The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other." Saenz v. Roe, 26 U.S. 489, 504, n. 17 (1999) (citing U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (KENNEDY, J. concurring)) . . . . FN 3

FN. 3: [B]ecause the Framers recognized that state power and identity were essential parts of the federal balance, see The Federalist No. 39, the Constitution is solicitous of the prerogatives of the States, even in an otherwise sovereign federal province. The Constitution . . . grants States certain powers over the times, places, and manner of federal elections (subject to Congressional revision), Art. I, §4, cl. 1 . . . , and allows States to appoint electors for the President, Art. II, §1, cl. 2. U.S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 841–842 (1995) (KENNEDY, J., concurring);

Were the other members of this Court as mindful as they generally are of our system of dual sovereignty, they would affirm the judgment of the Florida Supreme Court. (J. Ginsburg dissenting, Bush v. Gore, Part 1, concluding paragraph);


Whereas it strains credulity to assume that jurists possessing the intellect and experience of United States Supreme Court justices would, without specific extralegal motives firmly in mind:
 

(i) abandon suddenly their long-standing jurisprudential devotion to federalism and dual sovereignty;

(ii) misrepresent the Florida Supreme Court's position on the Florida Legislature's alleged directive to complete any recount by December 12, 2000; and (accordingly)

(iii) bar the state of Florida from correcting otherwise repairable defects in the counting of votes before the Electoral College deadlines of December 18, 2000 and January 6, 2001,


we must therefore regretfully conclude that the United States Supreme Court's per curiam rulings and opinions of December 9, 2000 and December 12, 2000 sprang from a malevolent, results-oriented scheme to ensure a victory by the Republican candidates for President and Vice President;

Whereas there are other strong reasons to believe that the Supreme Court's per curiam rulings of December 9, 2000 and December 12, 2000 were motivated by animus against or indifference to the numerical plurality of nearly 51 million American citizens nationwide who cast votes for the national candidates of the Democratic Party, and to further conclude that these rulings were compromised by partisan ties and passions favoring a victory by the Republican candidates for President and Vice President; e.g.:
 

(i) Justice Scalia has two sons who work for law firms that were associated with the campaign of the Republican candidate for president; as the Los Angeles Times reported on December 13, 2000, Scalia's "son Eugene is a Washington law partner of Theodore B. Olson, the attorney [now U.S. solicitor general] who twice has argued before the Supreme Court on behalf of Texas Gov. George W. Bush. Another son, John Scalia, is an attorney in the Miami firm that has represented Bush in Florida";

(ii) Justice Thomas's wife worked for an ultra-conservative think tank, the Heritage Foundation, and she was involved directly in transition planning for George W. Bush on behalf of the Heritage Foundation, a fact reported by the Los Angeles Times on December 13, 2000;

(iii) Justice O'Connor, upon being told on the evening of Election Day that Al Gore had won Florida, became visibly upset and said "This is terrible," betraying a clear bias against the Democratic candidate for president. According to her husband John, Justice O'Connor had previously expressed her desire to retire from the bench upon the election of a Republican candidate for president (see Evan Thomas and Michael Isikoff, "The Truth Behind the Pillars," Newsweek, December 25, 2000);

(iv) Chief Justice Rehnquist's desire to suspend the manual recount of undervotes in Florida—ballots cast disproportionately by members of racial and religious minorities—appears to reflect the unrepentant continuation of a troubling pattern of voter disenfranchisement commencing early in his legal career as an operative of the Republican Party of Arizona (see the testimony of Statement of James J. Brosnahan to the United States Senate Judiciary Committee, August 1, 1986, implicating Rehnquist in the suppression of minority voting in Phoenix during the 1962 election; see also Dennis Roddy, "Just our Bill," Pittsburgh Post-Gazette, December 2, 2000, describing "Operation Eagle Eye" and quoting Charlie Stevens, the then head of the Phoenix Young Republicans, as having told Rehnquist in 1962 that he disapproved of the operation);


Next page: VI. The Tragic Impact of the Supreme Court's 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
VII. The Voice of Memory
Therefore it is resolved that . . .