For anyone who thinks that such a suspicion is overly cynical, you should think back on the unprincipled behavior of Justice Scalia, who was a prime mover in the U.S. Supreme Court shutting down a Florida state recount of the presidential vote in 2000 with the explicit intent of protecting George W. Bush's "legitimacy" once the Court decided to hand him the White House.
In Bush v. Gore, Republican partisans on the Court, then including Chief Justice William Rehnquist and Justice Sandra Day O'Connor (who was considering retirement to care for her ailing husband), assembled a 5-4 majority on the key issue of rejecting the Florida recount standards and preventing them from being fixed.
It didn't seem to matter that the Court's intervention violated many of the supposed principles that the justices claimed to embrace, such as judicial restraint, respect for state privileges and refusal to divine meanings in constitutional provisions not explicitly stated by the Framers.
The five GOP partisans applied the 14th Amendment's requirement of "equal protection" under the law, essentially turning this important post-Civil War principle on its head. After all, the recount was an effort to recover legitimate ballots cast on antiquated voting machines mostly by poor and minority citizens while voters from richer and whiter precincts had their ballots counted in a higher proportion on state-of-the-art equipment.
But the GOP Five didn't mind perverting the 14th Amendment because they were looking toward a political higher cause: an excuse to "elect" Bush and thus give him the power to appoint future federal judges. What really mattered was continued Republican control of the Supreme Court, so the Constitution was treated as a malleable weapon for partisan purposes.
Scalia's Turnabout
Though O'Connor may have had the most pressing concern about Bush's appointment power -- so she could leave her seat to another Republican -- the hypocrisy was perhaps most striking for Justice Scalia, an advocate for an "originalist" interpretation of the Constitution, i.e., that the courts must follow the original intent of the Founders or those who approved constitutional amendments.
Thus, Scalia has argued that the 14th Amendment could only apply to black males because in 1868, when the amendment was passed, it was intended to grant full citizenship to black males who were recently freed from slavery.
However, the amendment's language is much broader. It states: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
During the 20th Century, courts increasingly interpreted the clear wording to guarantee fairness for women, gays and other people facing legal discrimination. However, Scalia has ridiculed such rulings as violating the "original intent."
"In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation," Scalia said in an interview with the legal magazine California Lawyer. "So does that mean that we've gone off in error by applying the 14th Amendment to both? Yes, yes. Sorry, to tell you that."
However, if the "original intent" of the amendment's drafters was so determinative -- that the 14th Amendment supposedly was only meant to apply to black men at the end of slavery -- it might be safe to assume that the drafters weren't thinking about protecting a white plutocrat like George W. Bush from possibly losing an election in Florida in 2000.
Yet, the 14th Amendment was precisely what Scalia and four other partisan Republicans on the Supreme Court cited to justify shutting down the Florida recount and handing the White House to Bush, despite the fact that he lost the national popular vote and apparently would have come out on the short end of the Florida recount if all legally cast ballots were counted.
In other words, Scalia and other right-wing justices operate with a situational ethic when it comes to "originalism" and "strict construction." If their partisan and ideological interests require the abandoning of those precepts, the principles are unceremoniously dumped overboard.
No Politics?
Of course, after the Court's Bush v. Gore ruling -- and Al Gore's gracious-but-pained concession speech the next day -- Justice Thomas insisted that politics played a "zero" role in the court's decisions. Later, asked whether Thomas's assessment was accurate, then-Chief Justice Rehnquist answered, "Absolutely."
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