Such an outcome would "cast a cloud" over the "legitimacy" of an eventual Bush presidency if the U.S. Supreme Court later decided to throw out the Gore gains as illegal, explained Justice Antonin Scalia in an opinion speaking for the majority, which included Chief Justice William Rehnquist and Justices Anthony Kennedy, Sandra Day O'Connor and Clarence Thomas.
"Count first, and rule upon the legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires," wrote Scalia, an appointee of President Ronald Reagan.
In other words, it was better for the U.S. public not to know for sure that Gore got the most votes if -- as expected -- the Supreme Court later decided simply to award the presidency to Bush.
In a sharply worded dissent, Justice John Paul Stevens took Scalia's reasoning to task. Stevens, a moderate who was appointed by Republican President Gerald Ford, complained that the high court's action overrode the judgment of a state supreme court, took sides on a constitutional question before that issue was argued to the justices, and misinterpreted the principles of "irreparable harm."
"Counting every legally cast vote cannot constitute irreparable harm," Stevens argued. "On the other hand, there is a danger that a stay may cause irreparable harm to the respondents [the Gore side] and, more importantly, the public at large" because the stay could prevent a full tally of the votes before the impending deadline of Dec. 12 to report election outcomes.
Immediately after the U.S. Supreme Court's unprecedented injunction, I wrote at Consortiumnews.com that if the high court insisted "on stopping the vote count and handing the presidency to George W. Bush, the United States will have embarked upon a dangerous political journey whose end could affect the future of all mankind...
"For American political institutions to ignore the will of the voters -- and to wrap partisanship in the judicial robes of the nation's highest court -- will almost certainly be followed by greater erosion of political freedom in the United States and eventually elsewhere."Perhaps most chilling, at least for the moment, is the now-unavoidable recognition that the U.S. Supreme Court, the country's final arbiter of justice, has transformed itself into the right wing's ultimate political weapon. A dark cloud is descending over the nation."
However, what was possibly most striking about that weekend was that most of the mainstream press (and much of the activist Left, which had favored Ralph Nader for president in 2000) accepted the high court's partisan edict with very little outrage.
The Right clearly wanted Bush in the White House by whatever means necessary; the Establishment didn't want the treasured "comity" of Washington shaken nor its key institutions like the Supreme Court questioned; and parts of the activist Left didn't care about the electoral outcome because Nader had pushed the line that "there isn't a dime's worth of difference" between Gore and Bush.
The Final Ruling
As Bush presented his dubious arguments to the U.S. Supreme Court on Dec. 11, Consortiumnews.com's political reporter Mollie Dickenson reported that the die had already been cast. She wrote:
"One of the court's supposed 'swing votes,' Justice Sandra Day O'Connor, is firmly on board for George W. Bush's victory."According to a knowledgeable source, O'Connor was visibly upset -- indeed furious -- when the networks called Florida for Vice President Al Gore on Election Night. 'This is terrible,' she said, giving the impression that she desperately wanted Bush to win."
But one optimist who thought that O'Connor would transcend partisanship and demand a ruling respectful of democratic principles was Al Gore.
Dickenson reported that as late as 4 p.m. on Dec. 12, as O'Connor and the Court's other four partisan Republicans were putting the finishing touches on their decision, Gore was making thank-you calls, including one to Sarah Brady, the gun-control advocate whose husband James Brady had been wounded in the 1981 assassination attempt against President Reagan.
"We're going to win this thing, Sarah," Gore said. "I just have all the faith in the world that Sandra Day O'Connor is going to be with us on this one."
Yet, as the clock ticked toward a midnight deadline for Florida to complete any recount, O'Connor was working with Justice Kennedy to fashion a ruling that would sound principled but still would prevent a recount and thus guarantee both George W. Bush's inauguration and Republican control over the appointment of future federal judges.
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