Bear Left!

The Bear Left Review of Books

The Betrayal of America:
How the Supreme Court Undermined the Constitution and Chose Our President
Vincent Bugliosi
Thunder's Mouth Press/Nation Books
166 pages / $9.95

Review by Tim Francis-Wright

This week will mark the first anniversary of one of the closest and most controversial presidential elections in American history. Vincent Bugliosi's brilliant polemic highlights the most egregious aspects of the election, the five-to-four Supreme Court decision that halted the counting of votes on 12 December 2000 and cemented the election for George W. Bush.

The consortium of newspapers that has promised a through tabulation of the disputed ballots has yet to report on its findings, although some new sources report that results are due in the next two weeks. One stated reason for the delay was to avoid any sense during a time of crisis that the victory in Florida for George W. Bush was tainted. It is both ironic and disturbing that the mainstream press finds an examination of democracy somehow less important when the nation is confronted by openly anti-democratic elements.

The Betrayal of America has become more relevant given the delay in the results from the media consortium. Bugliosi argues forcefully and convincingly that the Supreme Court overstepped its authority by stopping the Florida recount by emergency order on 9 December and by its infamous opinion on 12 December. He demolishes the main argument of the majority opinion—written per curiam, "by the court," probably because no one Supreme Court Justice dared to associate his or her name with it. The majority held that the equal protection clause of the Constitution mandates equal treatment of votes, various Florida counties were illegally holding ballots in different counties to different standards.

Bugliosi finds a number of flaws in the Court's argument. First, no Florida voter demonstrated that the treatment of undervotes aggrieved him or her in any way. Second, even if there were harm caused by different standards, it is not at all clear that Bush was being harmed by them. No harm should have meant no emergency stay of the recount. Third, the Court harmed all votes who cast votes that were not counted by stopping the recount. Finally, applying the equal protection argument on a national scale should have invalidated the entire election.

What galls Bugliosi most of all about the decision in Bush v. Gore is that it was a political decision, not an ideological one. Justices who have consistently supported the rights of states relative to the federal government bent over backwards here to rule for the federal government over the rights of states. Justices who have belittled equal protection claims in the past found a spurious equal protection right here. He stops short of calling Justices Kennedy, O'Connor, Rehnquist, Scalia, and Thomas criminals, only because no one thought to make political theft of the election a crime.

There is a lot to recommend about the book. Bugliosi writes in a lively and engaging fashion. While he is primarily preaching to the choir— the book is an expanded version of an article in The Nation, which is associated with the publisher— his sermon is convincing enough for the rest of the congregation. He neither supposes a deep knowledge of law, nor condescends to the layperson. He pulls no punches in his appraisal of the approach of Gore's main appellate lawyer, David Boies, although he does note that the Supreme Court was sure to rule in the way that it did, regardless of the strategies that Gore's lawyers used.

Bugliosi expanded on his article in The Nation by adding a series of "amplifications," essentially giant footnotes to the original article. The structure allows his main argument to be succinct, but it relegates some of his stronger points to what amount to be appendices.

One point that Bugliosi mentions only briefly and should have mentioned at more length is that the Constitution provides a firm method for resolving disputed Presidential elections of all sorts in the Congress. One of the main tenets of the Bush team in Bush v. Gore is that the Florida recount needed to be finished by 12 December. That date is the deadline established in Title 3, Section 5 of the United States Code for Congress to accept any state's presidential electors without the possibility of challenge.

Bugliosi correctly cites Justice Stevens's dissent in Bush v. Gore that the deadline has not stopped recounts in the past. On 4 January 1961, Hawaii sent Congress a new set of electoral votes. Congress accepted the revised slate because it was correct (of course, the new set of electors did not change the election). But in cases where there is a dispute about the proper electoral votes, Congress has the constitutional mandate to sort through the mess.

Congress determines which are the proper electoral votes. It counts the votes. If there is no majority from the votes cast, the 12th Amendment to the Constitution governs the selection of President and Vice President. The House votes, with each state having one vote, for President, and the Senate votes, with each senator having one vote, for Vice President.

If in fact the situation in Florida were as dire as the Bush team argued in Court, with voters effectively disenfranchished by different standards, there were two truly political routes for the Republicans to take. First, the Florida legislature, controlled by Republicans, could vote to send a slate of Republican electors to Congress. Second, even if the recount in Florida went for Gore after 12 December 2000, the Congressional Republicans could challenge the results, so no votes from Florida would be counted, and neither bush nor Gore would have a majority of electoral votes. Even in this case, Bush would win, because Republicans hold a majority of House delegations. (The Senate could conceivably have voted 50-50 for Vice President, with Gore breaking the tie for Lieberman.) But these overtly political machinations were made moot by a political decision of the Supreme Court.

A majority of the Supreme Court engaged in politics in its ruling of 12 December 2000, and Vincent Bugliosi is rightfully incensed. Whether he should be surprised is another matter. Most observers of the Supreme Court focus on issues like abortion, states' rights, or privacy, without focusing on politics. The only dissenting voices within the mainstream of American thought seem to be the critical legal studies movement, which holds that law is just the extension of political power by other means, and rational choice theorists, political scientists and economists who apply utilitarianism to everything. It is rare that these two schools of thought are in agreement with one another, but both consider judges to be as political as anybody else. It took this brazen an opinion to prove them right.