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OpEdNews Op Eds    H3'ed 3/29/12

A Judicial War on Democracy

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This article cross-posted from Consortium News

Former U.S. Supreme Court Justice Sandra Day O'Connor

James Madison and other Framers of the Constitution had their concerns about the potential excesses of democracy -- thus explaining the six-year Senate terms and the intricate system of checks and balances -- but they also trusted in democracy and the ability of the people's government to fashion national solutions to serious problems.

That was one of the reasons Madison and the Framers granted Congress an unlimited power to regulate interstate commerce, trusting that political leaders operating within the democratic process would recognize the needs of their time and apply this broad authority as necessary "to promote the general Welfare" of the American people.

But the spectacle that has unfolded over the past three days before the U.S. Supreme Court marks an historic reversal of this longstanding trust in democracy, as the Court's narrow right-wing majority prepares to eviscerate the Commerce Clause as part of a broader assault on the principles of representative democracy -- and on the Framers' philosophical belief in the value of government itself.

These five Republican justices -- John Roberts, Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito -- appear poised to effectively rewrite the Constitution's Commerce Clause in order to justify thwarting the judgment of elected officials who enacted the Affordable Care Act in 2010.

If the GOP Five continue on this presumed course toward striking down "Obamacare," it also would become the latest front in what looks to be a right-wing judicial war on democracy -- with the Supreme Court's Republicans serving not as fair-minded arbiters of the Constitution but as a black-robed rear-guard of an ideological army.

Bush v. Gore

The first major battle of this judicial war on democracy was the Bush v. Gore decision in December 2000, overturning the will of the American electorate, which favored Al Gore both nationally and apparently in the key state of Florida.

The Court's Republican partisans first enjoined the state of Florida from continuing a recount so the result would not undermine George W. Bush's "legitimacy" -- once the Court could figure out a rationale for handing him the Presidency. Then, they got to work coming up with some "constitutional" excuse.

The President's power to appoint federal judges was of particular importance to Justice Sandra Day O'Connor, who was eager to retire so she could tend to her ailing husband. As reporter Mollie Dickenson learned in the days after the November 2000 election, O'Connor had been distraught on Election Night to hear the TV networks initially declare Gore the winner in Florida.

Dickenson reported that O'Connor, at an Election Night party, was "visibly upset -- indeed furious -- when the networks called Florida for Vice President Al Gore." The justice declared that "this is terrible" and gave others attending the party "the impression that she desperately wanted Bush to win," Dickenson wrote.

In that same article, dated Dec. 11, 2000, the day before the Supreme Court ruled on Bush v. Gore, Dickenson quoted a former high-ranking Justice Department official in the Clinton administration as grasping the Court's conflict of interest over the President's appointment power.

"The Supreme Court's vote is a totally self-interested vote," the former official said. "They are ensuring that they will remain in the majority, even increase their majority."

Still, Gore remained confident that the Supreme Court -- and especially O'Connor -- would uphold the "rule of law" and allow the legally mandated Florida recount to proceed. Gore apparently couldn't get his brain around the emerging reality of a judicial process thoroughly infected by partisanship and ideology.

Behind the scenes, O'Connor was collaborating with Justice Anthony Kennedy in cobbling together a ruling that relied on a tortured interpretation of the 14th Amendment to justify awarding the White House -- and the power to appoint federal judges -- to the popular-vote loser, George W. Bush.

The key part of the ruling -- approved on a 5-4 vote -- cited the Amendment's "equal protection of the law" principle to throw out the recount because of Florida's variant voting standards across the state. The Court then gave the state a laughable two hours to fix the problem and complete a new recount.

The ruling, with Kennedy as the principal author, had turned the 14th Amendment on its head because the recount was an attempt to reduce the discrepancies in Florida's voting processes, which included antiquated equipment that under-counted votes in poor and minority precincts while state-of-the-art equipment in richer and whiter precincts had far fewer lost votes.

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Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at It's also available at

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