Associate Supreme Court Justice Antonin Scalia’s contorted, oddball thinking about politics and the rule of law is a good reminder why the stakes in 2008 presidential election are so high.

 

Eight years ago, Scalia was part of the 5-4 majority in one of the most controversial and infamous of all Supreme Court decisions. The case was Bush v. Gore. Five conservative, Republican justices voted in favor of candidate George Bush and, according to many, handed him the election when he didn’t deserve it.

 

Scalia doesn’t like to be reminded of Bush v. Gore. Whenever it’s mentioned to him, his standard reply is “get over it,” as if sinking the nation into eight years of George W. Bush wasn’t worth talking about.

 

And yet in the widely distributed Parade magazine of Sept. 14,  Scalia responded to the question “Is there a role of politics in our judicial system?” He answered, “None whatever. The absolute worst violation of the judge’s oath is to decide a case based on a partisan political or philosophical basis, rather than what the law requires.”

 

This, of course, is a high ideal, but one the Supreme Court hardly ever lives up to. In the last 20 years, the court has become almost as partisan as Congress, with Justice Scalia’s philosophical and political biases leading the way.

 

In 2000, virtually half the voters in the country concluded that the Supreme Court in Bush v. Gore had voted for purely partisan reasons to deny the Democrats of Florida a chance to have their votes legally recounted so as to dispel the cloud of suspicion over election procedures in a state governed by President Bush’s brother, and conducted by a Republican Secretary of State Katherine Harris, who was co-chair of  Bush’s Florida election campaign. Bush had won the election in Florida by only 1,784 votes. There was a legally mandated recount, which reduced his lead to 327.

 

Former Vice President Al Gore requested a further legal manual recount of ballots in four Florida Counties where ballot mishandling, if not election fraud, was suspected. The Supreme Court denied Gore’s legal request.

 

President Clinton wrote in his autobiography, “If Gore had been ahead in the vote count and Bush behind, there’s not a doubt in my mind that the same Supreme Court would have voted 9 to 0 to [re]count the vote and I would have supported the decision….Bush v. Gore will go down in history as one of the worst decisions the Supreme Court ever made….” Harvard law professor Alan Dershowitz, called it “the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority of justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath.”

 

The majority decision was a contorted and hypocritical mess and represents just the kind of thinking the nation would be subjected to for many decades should the Republicans retain the presidency and made new court appointments.

 

Basically, the majority ruled in Bush v. Gore that to equally protect all Florida voters, some Florida voters, Democrats, shouldn’t have the chance to see if their votes were counted at all.

 

Republicans on the court brushed aside worries that Republicans had been purging voter roles from Democrat-leaning districts and counties wherever they could. The “state’s rights” Supreme Court majority overruled the Florida State Supreme Court and the Democrat-controlled Florida legislature. In a Houdini-like escape from reason they contended that to recount all the votes in Florida, as the Florida court had called for, would violate the equal protection clause of the 14th Amendment, implying in essence that all the voters couldn’t get a fair recount in Florida because, presumably, of election irregularities, though the majority never actually made such an accusation.

 

Opponents were enraged by the Scalia-lead majority’s reasoning, arguing to recount all the votes would automatically constitute equal protection. But that’s not how partisan politics is played out in the twisted reasoning and intellectual gamesmanship that often ruins the court’s claims to rational impartiality. Imagine what might happen to Roe v. Wade with one or two other conservative justices, and how deftly women’s reproductive rights would be excised from rational discourse.

 

Justice Scalia, in particular, is a master of the judicial bait and switch. He believes the Constitution is not an evolving document and calls people who think so “idiots.” The constitutionality of laws and actions should be judged, Scalia holds, from an “originalist” position, in other words how the founders originally conceived the Constitution more than 200 years ago. It’s not a matter, apparently, of discerning the founders’ original intentions for the Constitution, but their original meanings, as they appeared in 18th century wilderness America.

 

Justice Scalia’s originist views are handily put aside, however, when his politics dictate his decisions regarding the executive branch and its frequent claims of permissible secrecy based on “executive privilege.”

 

In Cheney v. United States District Court for the District of Columbia, the vice president cited executive privilege as his reason for refusing to reveal the names of the participants in his energy task force of 2001, which did much to set the stage for the energy crisis today. Scalia, a friend of Cheney and a recent hunting partner, refused to recuse himself from the decision, which went 7-2 in Cheney’s favor largely along partisan and ideological lines. It was pure politics from the bench, the kind Scalia professes to abhor.

 

More curious, and more troubling, is the whole notion itself of an originalist justice who’s trying to discern the meaning of the Constitution when it was written. Article II, for instance, which governs the presidency, mentions nothing about “executive privilege.” The words are never used, and the implication is never made that the president, much less the vice president, has the inherent constitutional right to keep information from the public. Scalia’s philosophy has him engaging in a logically impossible effort.

 

That’s one example of what partisan politics does to judicial reasoning and exactly the kind of inconsistency and cunning that we’d be subjected to if justices of Scalia’s caliber were appointed to the bench after the coming election.