They did so with the expressed intent of protecting the "rights" of George W. Bush -- and without any concern that the Congress in 1868 never expressed any intent for the amendment to be used as a device to overturn the will of the voters and put a white plutocrat in the White House.
But as the saying goes, necessity is the mother of invention. And Scalia and his cohorts were willing to invent -- or ignore -- "originalism" as needed to achieve their partisan ends. They were acting as what they like to condemn, "activist judges."
By the way, the relevant part of the 14th Amendment doesn't make any reference to race or to gender, only to "citizens" and "any person."
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."
Four decades ago -- before Scalia's arrival on the scene -- the U.S. Supreme Court ruled that those provisions do apply to women. More recently, some federal judges have ruled that the language also would prohibit discriminatory laws against gays.
Bush v. Gore
As painful as it might be to some, it's worth reviewing -- in the context of Scalia's recent statement -- how the Bush v. Gore ruling came to pass.
The behind-the-scenes court drama began on Dec. 8, 2000. Bush was clinging to an official lead of only a few hundred votes out of six million cast in Florida when the Bush forces were dealt a crushing blow. A divided Florida Supreme Court ordered a statewide review of ballots that had been kicked out by antiquated counting machines.
The recount began on the morning of Dec. 9. Immediately, the canvassers began finding scores of legitimate votes that the machines had rejected.
Despite a supposed reverence for states' rights and a disdain for federal interference, Bush's lawyers raced to the U.S. Appeals Court in Atlanta to stop the count. Though dominated by Republican conservatives, the appeals court held to established precedents and refused to intervene to stop the recount.
A frantic Bush then turned to the U.S. Supreme Court in Washington. There, in the late afternoon, the high court took the unprecedented step of issuing an injunction to stop the counting of votes cast by American citizens.
In the injunction, Justice Scalia made clear that the purpose of the court's action was to prevent Bush from falling behind in the tally and thus raising questions about his legitimacy should the Supreme Court later declare him the winner.
That outcome would "cast a cloud" over the "legitimacy" of an eventual Bush presidency, explained Scalia. "Count first, and rule upon the legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires," Scalia wrote.
Trusting the Law
Nevertheless, on Dec. 11, Gore and his lawyers voiced confidence that the rule of law would prevail -- that the U.S. Supreme Court would rise above any partisan concerns and would insist that the votes be counted and the will of the voters be respected.
Gore was particularly confident that Justice O'Connor would reject partisanship and apply the law fairly. However, on that same day, reporter Mollie Dickenson wrote for Consortiumnews.com that O'Connor, a supposed "swing vote" was "firmly on board for George W. Bush's victory."
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