OPEN LETTER CONCERNING THE INVITATION
TO JUSTICE CLARENCE THOMAS TO SPEAK AT THE UGA
SCHOOL OF LAW GRADUATION CEREMONY


Published in Flagpole Magazine, p. 7 (April 30, 2003).

Author: Donald E. Wilkes, Jr., Professor of Law, University of Georgia School of Law.

On Monday, November 25, 2002, the law faculty of the University of
Georgia School of Law received a memorandum from Dean David
Shipley which begins as follows: “I am pleased to announce that Justice
Clarence Thomas has accepted the invitation extended by me, Class of
2003 President [name redacted], Class of 2003 Vice President [name
redacted], and Class of 2004 Vice President [name redacted] to be our
graduation speaker on May 17, 2003.”

The decision to invite Justice Thomas is appalling, unwise, and
perverse–the embodiment of bad judgment.  Anyone who has carefully
examined his opinions in the fields of criminal procedure, civil rights,
civil liberties, the rights of prisoners, and the writ of habeas corpus
knows that Justice Thomas has one of the most anti-human rights voting
records in modern Supreme Court history.  This man does not deserve
the honor of being invited to speak at the law school graduation
ceremony.  He is inimicus libertatis, the enemy of liberty.   A worse
choice of a judge as graduation speaker could hardly have made.
Inviting a judge with his lamentable record on individual rights issues is
a terrible mistake and sets a bad precedent.  He is not the type of judge
who should be held up as an example for students on the verge of
entering the legal profession.  He is unworthy of the high honor being
bestowed on him by this law school.  His appearance here will, in the
eyes of future generations, be a blot on the reputation of and an
embarrassment to this law school.

The poor judgment reflected in the disastrous decision to invite Justice
Thomas unfairly places graduating law students on the horns of a
dilemma.  They must choose between, on the one hand, being forced to
attend a ceremony where Justice Thomas will be feted and to listen
politely to and applaud Justice Thomas’s speech, or, on the other hand,
foregoing attendance at their own graduation ceremony.  Similarly, law
faculty members must either attend Justice Thomas’s speech or miss the
ceremony.
   
And who is this man the students and faculty will be forced to listen to
if they attend the ceremony?  Justice Thomas is a reactionary judicial
activist–a right-wing  extremist pretending to be a neutral and impartial
judge.  His judicial philosophy amounts to “a new, aggressive, and
repressive judicial activism.”  Niles, Clarence Thomas: The First Ten
Years Looking For Consistency, 10 Am. U. J. Gender Soc. Pol’y & L.
327, 332 (2002).  This man’s judicial philosophy embodies the right-
wing extremist agenda.  He has a narrow view of the basic rights of
Americans and usually votes to denigrate and attenuate those rights.  In
cases involving criminal procedure, civil rights, civil liberties, the rights
of prisoners, and the writ of habeas corpus he almost always sides with
the government and rejects the claims of individuals that their rights
were violated.  “Thomas has . . . been a consistent member of the
Court’s most conservative wing since his first term. . . .  If judicial
liberalism is defined in the traditional fashion as support for individuals’
rights in disputes with the government, Thomas stands out as a strong
conservative in any analysis. . . .  Justice Thomas has established a
consistent and predictable voting record as a dependable member of the
Court’s most conservative wing. . . .  [H]e articulates . . . a vision of
constitutional interpretation that . . . advances his preferences for . . .
diminution of constitutional protections for individuals.” Smith,
Clarence Thomas: A Distinctive Justice
, 28 Seton Hall L. Rev. 1, 2, 28
(1997).  He believes that the role of the courts in protecting individual
rights is very limited.  He not infrequently expresses an inclination to
overrule landmark pro-human rights Supreme Court precedents.  He
doesn’t think much of the writ of habeas corpus.  Indeed, in O’Neal v.
McAninch, 513 U. S. 432, 447 (1995), in a dissenting opinion, he went
so far as to assert: “We have ample cause to be wary of the writ [of
habeas corpus!].” I can recall only one case where Justice Thomas has
ever voted in favor of granting relief to a habeas corpus petitioner, and
in that case Justice Thomas, along with Justice Scalia, took a narrower
view than the Court of the petitioner’s rights and only concurred in part
and in the judgment.  Lynce v. Mathis, 519 U. S. 433 (1997).  He is
shrilly pro-death penalty.  He “expresses little sympathy for the plight of
the incarcerated.”  Note, Lasting Stigma: Affirmative Action and
Clarence Thomas’s Prisoners’ Rights Jurisprudence, 112 Harv. L. Rev.
1331, 1341 (1999).  He is “the first justice to criticize, even indirectly,
the ruling in Brown [v. Board of Education] . . .” Id. at 1348 n. 50.
Furthermore, some of Justice Thomas’s opinions rejecting claims of
violations of rights are written a mocking, scornful tone inappropriate in
a judge but typical of a right-wing extremist.

In deciding individual rights cases Justice Thomas almost always votes
the same as the two other right-wing extremists serving on the Court,
Chief Justice Rehnquist and Justice Scalia.  See, e.g., Wilkins,
Worthington, Chow, Chow & Becker, Supreme Court Voting Behavior:
2000 Term, 29 Hastings Const. L. Q. 247 (2002) (tables of voting
patterns  of Supreme Court justices since 1991 term).  Justice Thomas is
therefore one of the principal reasons why tragically in recent years the
Supreme Court has been implementing a counterrevolution in criminal
procedure and individual rights–a counterrevolution which has
narrowed the legal rights and remedies of Americans against
government, enlarged the power of the state over the individual, and
transformed the role of the Court from that of the keeper of the nation’s
conscience to that of a cost-benefit analysis calculating machine.

Impius et crudelis judicandus est qui libertati non favet, the old legal
maxim says.  He is to be judged impious and cruel who does not favor
liberty.  This maxim fits Justice Thomas to a T.

Moreover, Justice Thomas is one of the five right-wing Republican
justices who handed the presidency to Republican candidate George W.
Bush in Bush v. Gore, 531 U. S. 98 (2000), the most outrageously
partisan decision of the Supreme Court in history, a decision in which,
as Vincent Bugliosi has written, “the Court committed the unpardonable
sin of being a knowing surrogate for the Republican party instead of
being an impartial arbiter of the law.”  Bugliosi, None Dare Call It
Treason, The Nation, at 11 (Feb. 5, 2001).

In this letter I limit my critique of Justice Thomas to his voting record
while on the Supreme Court.  I put to one side the serious questions that
have been raised about whether Justice Thomas lied or was deceptive or
evasive when he testified at his U. S. Senate confirmation hearing in
1991.  See, e.g., D. Brock, Blinded by the Right: The Conscience
of an Ex-Conservative (2002);
C. Smith & J. Baugh, The Real Clarence
Thomas:  Confirmation Veracity Meets Performance Reality (2000); J.
Mayer & J. Abramson, Strange Justice (1994); Baugh & Smith,
Doubting Thomas: Confirmation Veracity Meets Performance Reality,
19 Seattle U. L. Rev. 455 (1996); Bell, Clarence Thomas: Evasive or
Deceptive, 21 N. C. Cent. L. J. 194 (1995); Tushnet, Book Review, 63
Geo. Wash. L. Rev. 466 (1995).  Contra: D. Brock, The Real Anita
Hill (1993); O’Daniel, Book Review, 5 Tex. Rev. L. & Pol. 495
(2001).

When Justice Thomas appeared at the University of North Carolina
School of Law in 2002, the Black Law Students Association there
staged a teach-in protest, and the five African-American law faculty
members boycotted his appearances and issued a joint letter which
stated in part: “We will not participate in any institutional gesture that
honors and endorses what Justice Thomas does.”  See Calmore,
Airing Dirty Laundry: Disputes Among Privileged Blacks–From
Clarence Thomas to the “Law School Five,” 40 How. L. Rev. 175
(2003).
To all of which I say, Amen.
   
In protest of Justice Thomas’s appearance here I shall not attend the law
school graduation ceremony.  Instead, at the time Justice Thomas
speaks, I will deliver my own speech at the Arch, the Tate Center, or
some other appropriate site on campus a good distance away from the
law school graduation ceremony.  The speech will focus on Justice
Thomas’s deplorable record as a Supreme Court justice and the blows
that record has inflicted on liberty, freedom, rights, and justice.  My
speech will be part of a lawful, respectful, peaceable, classic exercise of
First Amendment rights, and I hope there will be many others there to
hear me and to express their concern about Justice Thomas’s anti-
individual rights decisions and right-wing extremist ideology.

Here is a summary of a few of the numerous Supreme Court decisions
in the fields of criminal procedure, civil rights, civil liberties, the rights
of prisoners, and the writ of habeas corpus where Justice Thomas has
voted against an individual’s claim that his or her rights were violated:

    ■ In Hudson v. McMillian, 503 U. S. 1 (1992), the Court held that
the eighth amendment cruel and unusual punishments clause is violated
when prison officials maliciously and sadistically use force to cause
harm to an inmate, whether or not significant injury is evident. The
plaintiff inmate had proved in federal district court that while he was in
handcuffs and shackles two prison guards had, when there was no need
to do so, punched him in the mouth, eyes, chest, and stomach, as well as
kicked and punched him from behind.  As result of this episode the
inmate suffered minor bruises, swelling of his face, mouth, and lip,
loosened teeth, and the cracking of his partial dental plate.  The inmate
had been awarded $800.00 in damages against the two guards and a
prison supervisor who watched the beating but did nothing except tell
the two guards “not to have too much fun.”  Justice Thomas filed a
dissenting opinion in which Justice Scalia joined.  In his dissenting
opinion Justice Thomas argued that (1) a use of force that causes only
insignificant harm is not cruel and unusual punishment, and (2) the cruel
and unusual punishments clause regulates sentences, but not the
treatment of prisoners.  Justice Thomas’s dissent is notable for its
“combative, faintly mocking tone.”  Note, Lasting Stigma: Affirmative
Action and Clarence Thomas’s Prisoners’ Rights Jurisprudence
, 112
Harv. L. Rev. 1331, 1345 (1999).  In that dissent, Justice Thomas
claimed that “[t]oday’s expansion of the Cruel and Unusual
Punishments Clause [is] beyond all bounds of history and precedent . . .
and another manifestation of the pervasive view that the Federal
Constitution must address all ills in our society.”  He added: “The
Eighth Amendment is not, and should not be turned into, a National
Code of Prison Regulation.”  503 U. S. at 28.  Justice O’Connor,
speaking for the majority, reproved  Justice Thomas in these words: “To
deny, as the dissent does, the difference between punching a prisoner in
the face and serving him unappetizing food is to ignore the ‘concepts of
dignity, civilized standards, humanity, and decency’ that animate the
Eighth Amendment.”   503 U. S. at 11.  Justice Thomas’s dissent in this
case prompted an editorial in The New York Times labeling him “The
Youngest, Cruelest Justice.”  The Youngest, Cruelest Justice, N. Y.
Times, at A24 (Feb. 27, 1992).

    ■ In Morgan v. Illinois, 504 U. S. 719 (1992), the Court held that
(1) in a capital punishment trial a juror who will always impose the
death penalty for capital murder is not “impartial” in the sense required
by the sixth amendment, (2) the Constitution requires that voir dire
directed to this specific “bias” be provided upon the defendant's request,
and (3) that the more general questions about “fairness” and ability to
“follow the law” that were asked during voir dire in this case were
inadequate.  Justice Scalia filed a dissenting opinion in which Chief
Justice Rehnquist and Justice Thomas joined.

    ■ In Herrera v. Collins, 506 U. S. 390 (1993), Justice Thomas,
along with Justices O'Connor, Scalia, and Kennedy, joined in Chief
Justice Rehnquist’s opinion for the Court, which held that (1) even in a
death sentence case it was not a violation of due process for Texas to
require that motions for a new trial based on newly discovered evidence
be filed within 30 days of sentencing, and (2) a claim of actual
innocence based on newly discovered evidence is not grounds for
federal habeas corpus relief, even where the habeas petitioner has been
sentenced to death. 

    ■ In Graham v. Collins, 506 U. S. 461 (1993), Justice Thomas,
along with Chief Justice Rehnquist and Justices Scalia and Kennedy,
joined in Justice White’s opinion for the Court, which denied federal
habeas corpus relief to a Texas death row inmate based on one of the
numerous obstacles to habeas relief invented by the Supreme Court in
recent years to curtail the scope of the writ of habeas corpus.  Justice
Thomas also filed a concurring opinion which he hostilely described the
NAACP Legal Defense and Educational Fund’s concerted national
litigative campaign against the constitutionality of the death penalty in
the 1960's and early 1970's as a campaign “waged by a small number of
ambitious lawyers and academics on the Fund's behalf.”  506 U. S. at
480. These callous, insensitive comments were issued the day after the
death of Justice Thurgood Marshall.

    ■ In Brecht v. Abrahamson, 507 U. S. 619 (1993), Justice
Thomas, along with Justices Stevens, Scalia, and Kennedy, joined in
Chief Justice Rehnquist’s opinion for the Court, which changed the
standard of harmless error in federal habeas corpus proceedings to a less
onerous one, i.e., one which makes it more likely that a violation of a
habeas petitioner’s constitutional rights will be deemed harmless error
and that therefore habeas relief will be denied.  The new standard
adopted by the Court previously had been limited to claims of
nonconstitutional error in federal criminal cases.

    ■ In Withrow v.Williams, 507 U. S. 680 (1993), the Court held
that a claim that a confession obtained in violation of Miranda v. United
States
, 384 U. S. 436 (1966), was admitted at the petitioner’s state
criminal trial may be raised in a federal habeas corpus proceeding.
Justice O'Connor filed opinion concurring in part and dissenting in part
in which Chief Justice Rehnquist joined.  Justice Scalia filed a
dissenting opinion in which Justice Thomas joined, arguing that
Miranda claims should be cognizable in federal habeas proceedings
brought by state prisoners only in the event the state courts had denied
the petitioner an opportunity for full and fair litigation of the Miranda
claim (which would make it nearly impossible to ever obtain federal
habeas relief based on a Miranda claim).

    ■ In J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127 (1994), the
Court held that the equal protection clause of the fourteenth amendment
forbids intentional discrimination on the basis of gender in the trial jury
selection process, just as it prohibits discrimination on the basis of race. 
Chief Justice Rehnquist filed a dissenting opinion.  Justice Scalia filed a
dissenting opinion in which Chief Justice Rehnquist and Justice Thomas
joined.

    ■ In Simmons v. South Carolina, 512 U. S. 154 (1994), the Court
held that (1) the state, which had raised the specter of the defendant's
future dangerousness, violated the defendant's due process rights by
refusing to instruct the jury that, as alternative to a death sentence, a
sentence of life imprisonment carried with it no possibility of parole,
and (2) the trial court's jury instruction that life imprisonment was to be
given its ordinary meaning and that the jury was not to consider parole did
not satisfy in substance defendant's request for a jury charge on parole
ineligibility.  Justice Scalia filed a dissenting opinion in which Justice
Thomas joined.

    ■ In McFarland v. Scott, 512 U. S. 849 (1994), the Court held that
(1) the 1988 Act of Congress creating a statutory right to qualified legal
representation in federal habeas corpus proceedings for state death row
inmates includes a right to legal assistance in the preparation of a habeas
corpus petition, and that therefore the right to appointed counsel created
by the statute adheres prior to filing of a formal, legally sufficient
habeas petition, and (2) the federal district court has jurisdiction to enter
a stay of execution where necessary to give effect to the state death row
inmate’s statutory right to appointment of habeas corpus counsel. 
Justice Thomas filed a dissenting opinion in which Chief Justice
Rehnquist and Justice Scalia joined.  In his dissenting opinion, Justice
Thomas argued that (1) a district court lacks jurisdiction to grant a stay
until an application for a stay has been filed, and (2) a district court
cannot appoint counsel under the statute until the death row inmate has
actually filed a federal habeas corpus petition.

    ■ In Holder v. Hall, 512 U. S. 874 (1994), the Court held that the
plaintiff black voters could not maintain a vote dilution challenge to a
government body, such as county commission, under § 2 of Voting
Rights Act of 1965.  Justice Thomas filed an opinion, joined in by
Justice Scalia, concurring in the judgment.  In his opinion Justice
Thomas asserted that “a systematic reassessment of our interpretation of
§ 2 is required in this case,” complained that  “the broad reach” which
prior Supreme Court decisions had given to the Act “has produced such
a disastrous misadventure in judicial policymaking,” and urged the
overruling of Thornburg v. Gingles, 478 U. S. 30 (1986), which had
held that proof of vote dilution could establish a violation of § 2.  512 U.
S. at 892, 893, 943.  In criticizing numerous previous Supreme Court
interpretations of the Act, Justice Thomas waxed hyperbolic: “We
would be mighty Platonic guardians indeed if Congress had granted us
the authority to determine the best form of local government for every
county, city, village, and town in America. But under our constitutional
system, this Court is not a centralized politburo appointed for life to
dictate to the provinces the ‘correct’ theories of democratic
representation, the ‘best’ electoral systems for securing truly
‘representative’ government, the ‘fairest’ proportions of minority
political influence, or, as respondents would have us hold today, the
‘proper’ sizes for local governing bodies.”  512 U. S. at 912.

    ■ In Schlup v. Delo, 513 U. S. 298 (1995), involving a state death
row inmate seeking to proceed on a second federal habeas corpus
petition raising claims either raised in or omitted from his initial federal
habeas petition, the Court held that the standard of Murray v. Carrier,
477 U. S. 478 (1986), which requires a procedurally defaulted habeas
petitioner to show that a constitutional violation has probably resulted in
the conviction of one who is actually innocent, rather than the more
stringent standard of Sawyer v. Whitley, 505 U. S. 333 (1992), under
which a petitioner must demonstrate by clear and convincing evidence
that, but for a constitutional error, no reasonable juror would have found
him guilty, governs the miscarriage of justice inquiry when a petitioner
who has been sentenced to death raises a claim of actual innocence to
avoid a procedural bar to consideration of merits of constitutional claims
in a second or subsequent federal habeas petition.  Chief Justice
Rehnquist filed a dissenting opinion in which Justices Kennedy and
Thomas joined.  Justice Scalia filed a dissenting opinion in which
Justice Thomas joined.

    ■ In O’Neal v. McAninch, 513 U. S. 432 (1995), in which the
federal habeas corpus petitioner was a state prisoner convicted of
murder, the Court held that where in a federal habeas corpus proceeding
the federal district judge determines that there has been a violation of
the petitioner’s federal constitutional rights in the state court criminal
proceedings but the federal district judge is in grave doubt about
whether or not that error is harmless, the judge should treat the error, not
as if it were harmless, but as if it affected the verdict (i.e., as if it had a
“substantial and injurious effect or influence in determining the jury's
verdict”).  Justice Thomas filed a dissenting opinion in which Chief
Justice Rehnquist and Justice Scalia joined.

    ■ In Kyles v. Whitney, 514 U. S. 419 (1995), the Court granted
federal habeas corpus relief to a state death row inmate on grounds the
prosecution had, in violation of due process, suppressed exculpatory
evidence.  Justice Scalia filed a dissenting opinion in which Chief
Justice Rehnquist and Justices Kennedy and Thomas joined.

    ■ In M. L. B. v. S. L. J., 519 U. S. 102 (1996), the Court held,
based in part on  the landmark decision in Griffin v. Illinois, 351 U. S.
12 (1956) (fourteenth amendment due process and equal protection
clauses require that indigents be provided a free transcript when they
appeal), and other precedents building on Griffin, that the due process
and equal protection clauses were violated when the state denied an
indigent mother the right to appeal the termination of her parental rights
unless she prepaid record preparation fees of over $2,300.  Justice
Thomas filed a dissenting opinion in which Justice Scalia joined, and in
which Chief Justice Rehnquist joined in part.  In Part II of his dissenting
opinion Justice Thomas wrote that “if this case squarely presented the
question, I would be inclined to vote to overrule Griffin and its
progeny.”  519 U. S. at 139.  Chief Justice Rehnquist declined to join in
Part II of Justice Thomas’s dissent.

    ■ In Lindh v. Murphy, 521 U. S. 320 (1997), the Court held that
the provisions of Title I of the Antiterrorism and Effective Death
Penalty Act of 1996, which greatly curtailed the availability of federal
postconviction habeas corpus relief, did not apply in noncapital cases to
habeas petitioners whose habeas petitions had been filed before
enactment of Title I.  Chief Justice Rehnquist filed dissenting opinion in
which Justices Scalia, Kennedy, and Thomas joined.

    ■ In Pennsylvania Bd. of Probation and Parole v. Scott, 524 U. S.
357 (1998), Justice Thomas wrote the opinion of the Court, in which
Chief Justice Rehnquist and Justices O’Connor, Scalia, and Kennedy
joined, holding that evidence obtained in violation of the fourth
amendment is admissible in a parole revocation proceeding, even if the
officer conducting the illegal search or seizure is aware or has reason to
be aware of the suspect's parole  status.

    ■ In Mitchell v. United States, 526 U. S. 314 (1999), the Court
held that (1) neither the defendant's guilty plea nor her statements at the
plea colloquy functioned as a waiver of her right to remain silent at
sentencing, and (2) the sentencing court could not draw adverse
inferences from the defendant's silence in determining facts relating to
circumstances and details of the crime.  Justice Scalia filed a dissenting
opinion in which Chief Justice Rehnquist and Justices O’Connor and
Thomas joined.  Justice Thomas also filed his  own dissenting opinion
in which he attacked two landmark fifth amendment self-incrimination
privilege decisions, Griffin v. California, 380 U. S. 609 (1965) (jury
charge authorizing jury to infer guilt from a defendant’s failure to testify
violates self-incrimination privilege), and Carter v. Kentucky, 450 U. S.
288 (1981) (self-incrimination privilege secures a defendant right to
have jury instructed that his failure to testify must be disregarded),
argued that these two decisions “should be reexamined,” and added:
“Given their indefensible foundations, I would be willing to reconsider
Griffin and Carter in the appropriate case.”  526 U. S. at 342, 343.

    ■ In City of Chicago v. Morales, 527 U. S. 41 (1999), the Court
held unconstitutionally vague a 1992 municipal ordinance which
required a police officer, on observing a person whom he reasonably
believed to be a criminal street gang member loitering in any public
place with one or more other persons, to order all such persons to
disperse, and made failure to obey such an order a crime.  Under this
ordinance 42,000 persons had been arrested during the three years it was
enforced.  Justice Thomas filed a dissenting opinion in which Chief
Justice Rehnquist and Justice Scalia joined.

    ■ In Dickerson v. United States, 530 U. S. 428 (2000), the Court
held that the landmark decision in Miranda v. Arizona, 384 U. S. 436
(1966), was a constitutional decision that could not be overturned by an
Act of Congress and that therefore 18 U. S. C. § 3501, which was
enacted in 1968 and purported to made admissible in federal court
confessions obtained in violation of Miranda, was unconstitutional.
Justice Scalia filed a dissenting opinion in which Justice Thomas joined.
At the end of that dissenting opinion Justice Scalia announced that “until
§ 3501 is repealed, [I] will continue to apply it in all cases where there
has been a sustainable finding that the defendant’s confession was
voluntary [even it was obtained in violation of Miranda].”  530 U. S. at
465.

    ■ In City of Indianapolis v. Edmond, 531 U. S. 32 (2000), the
Court held that a highway motor vehicle checkpoint (i.e., roadblock)
program which was unaccompanied by individualized suspicion of the
vehicles stopped, and whose primary purpose was to detect evidence of
ordinary criminal wrongdoing (i.e., drug offenses), violated the fourth
amendment.  Chief Justice Rehnquist filed dissenting opinion in which
Justice Thomas joined and in which Justice Scalia joined in part.  Justice
Thomas also filed his own dissenting opinion.

    ■ In Shafer v. South Carolina, 532 U. S. 36 (2001), a follow-up to
Simmons v. South Carolina, 512 U. S. 154 (1994), the Court held that
(1) whenever future dangerousness is at issue in a capital sentencing
proceeding under South Carolina's amended sentencing scheme, due
process requires that the jury must be informed that a life sentence
carries no possibility of parole, and (2) neither the trial court's
instruction nor defense counsel's closing argument was sufficient to
inform the jurors of the defendant's parole ineligibility.  Justices Scalia
and Thomas each filed a dissenting opinion.

    ■ In Ferguson v. City of Charleston, 532 U. S. 67 (2001), which
involved the drug testing by a public hospital of unsuspecting pregnant
women suspected of cocaine use and the forwarding of positive test
results to the police so the women could be arrested on criminal charges,
the Court held that (1) a state hospital's performance of a diagnostic test
to obtain evidence of a patient's criminal conduct for law enforcement
purposes is an unreasonable search if the patient has not consented to
the procedure, and (2) the interest in using the threat of criminal
sanctions to deter pregnant women from drug abuse does not justify a
departure from the general rule that an official nonconsensual search is
unconstitutional if not authorized by a valid search warrant.  Justice
Scalia filed a dissenting opinion in which Chief Justice Rehnquist and
Justice Thomas joined.
 
    ■ In Atwater v. City of Lago Vista, 532 U. S. 318 (2001), the
“soccer mom” case, Justice Thomas, along with Chief Justice Rehnquist
and Justices Scalia and Kennedy, joined in Justice Souter’s opinion for
the Court, which held that police do not violate the Fourth Amendment
when they make a warrantless arrest for a minor criminal offense not
involving a breach of the peace, such as a misdemeanor seatbelt
violation punishable only by a fine.

    ■ In INS v. St. Cyr, 533 U. S. 289 (2001), the Court held that: (1)
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
and the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA) did not deprive the federal courts  of jurisdiction to
review a permanent resident alien's habeas corpus petition, and (2) the
provisions of AEDPA and IIRIRA repealing discretionary relief from
deportation did not apply retroactively to the alien, who had pleaded
guilty to a sale of controlled substances prior to statutes' enactment.
Justice Scalia filed a dissenting opinion in which Chief Justice
Rehnquist and Justice Thomas joined.  In that dissenting opinion Justice
Scalia “made the unprecedented argument that the [Habeas Corpus]
Suspension Clause [of the U. S. Constitution] places no restriction
whatsoever on the permanent abrogation or redefinition of the writ of
habeas corpus, but rather prohibits only temporary suspensions,” and
also “maintained that the inquiry into the discretionary powers of the
executive to release a prisoner lay outside the scope of the writ as it
existed in 1789, and therefore, outside the reach of the Suspension
Clause.”  Neuman, The Habeas Corpus Suspension Clause After INS v.
St. Cyr, 33 Colum. Hum. Rts. Rev. 555, 559-60 (2002).

    ■ In Lee v. Kemna, 534 U. S. 362 (2002), the Court held that the
federal courts were not procedurally barred from considering the federal
habeas corpus petitioner’s due process claim that he should have been
granted an overnight continuance at his state murder trial so that he
could locate subpoenaed, previously present, but suddenly missing alibi
witnesses key to his defense, where the petitioner had substantially, if
imperfectly, made to the trial court the basic showing required under
state law to obtain a continuance.  Justice Kennedy filed a dissenting
opinion in which Justices Scalia and Thomas joined.

    ■ In Alabama v. Shelton, 535 U. S. 654 (2002), the Court held
that the sixth amendment right to counsel extends to a criminal
defendant sentenced to a suspended or probated term of imprisonment.
Justice Scalia filed a dissenting opinion in which Chief Justice
Rehnquist and Justices Kennedy and Thomas joined.

    ■ In Atkins v. Virginia, 536 U. S. 304 (2002), the Court held that
the execution of mentally retarded criminal offenders violates the cruel
and unusual punishments clause of the eighth amendment.  Chief Justice
Rehnquist filed a dissenting opinion in which Justices Scalia and
Thomas joined. Justice Scalia filed a dissenting opinion in which Chief
Justice Rehnquist and Justice Thomas joined.

    ■ In Hope v. Pelzer, 536 U. S. 730 (2002), the Court held that (1)
under the circumstances, the alleged handcuffing of the plaintiff prison
inmates to a hitching post was a gratuitous infliction of wanton and
unnecessary pain which violated the eighth amendment cruel and
unusual punishments clause, and (2) the defense of qualified immunity
was precluded at the summary judgment stage of this civil rights action.
Justice Thomas filed a dissenting opinion in which Chief Justice
Rehnquist and Justice Scalia joined, claiming that the majority opinion
was “based . . . on [the majority’s] own subjective views on appropriate
methods of prison discipline.”  536 U. S. at 748.  He also maintained
that the device to which the inmates had allegedly been affixed was a
“restraining bar,” not a “hitching post.”  536 U. S. at 749 n. 1.

    ■ In Board of Education v. Earls, 536 U. S. 822 (2002), Justice
Thomas wrote the opinion for the Court, in which Chief Justice
Rehnquist and Justices Scalia, Kennedy, and Breyer joined, upholding
the constitutionality of mandatory suspicionless drug testing of all
students in a public school district participating in competitive
extracurricular activities.

There are, of course, in comparison with his numerous pro-government
votes, a relatively small number of cases where Justice Thomas’s vote in
a case in the fields of criminal procedure, civil rights, civil liberties, the
rights of prisoners, and the writ of habeas corpus has been in favor of an
individual rights claim.  See, e.g., Ring v. Arizona, 536 U. S. 584
(2002); Kyllo v. United States, 533 U. S. 27 (2001); Apprendi v. New
Jersey, 530 U. S. 466 (2000); United States v. Hubbell, 530 U. S. 27
(2000);  Carmell v. Texas, 529 U.S. 513 (2000); Bond v. United States,
529 U. S. 334 (2000); Florida v. J. L., 529 U. S. 266 (2000); Knowles v.
Iowa, 525 U. S.  113 (1998); United States v. Bajakajian, 524 U. S. 321
(1998) (opinion for the Court by Thomas, J.); Chandler v. Miller, 520
U. S. 305 (1997); Lynce v. Mathis, 519 U. S. 433 (1997); Wilson v.
Arkansas, 514 U. S. 927 (1995) (opinion for the Court by Thomas, J.);
United States v. Williams, 504 U. S. 36 (1992); Jacobson v. United
States, 503 U. S. 540 (1992).  These surprising cases are, however,
merely the exceptions which prove the rule.
   
Furthermore, to crown all, in Bush v. Gore, 531 U. S. 98 (2000), Justice
Thomas, along with Chief Justice Rehnquist and Justices O’Connor,
Scalia, and Kennedy, all of whom are Republicans appointed by
Republican presidents, joined in the per curiam opinion for the Court
which delivered the presidency to Republican candidate George W.
Bush.  Justice Thomas was one of the five justices who voted to hear the
case in the first place, then to grant the infamous stay of the Florida
presidential vote recounting, and finally to forbid any further
recounting.  Bush v. Gore, as I have noted elsewhere, “is the most
egregiously partisan ruling in the Supreme Court's history,” in which
“the court's majority let its desire for a particular partisan outcome have
priority over legal principles.”  Wilkes, A President by Judicial Fiat,
Flagpole Magazine, at 8 (Dec. 11, 2002).  In Bush v. Gore, as I have
noted in my Flagpole article, “the majority justices, in order to rule in
Bush's favor, endorsed legal arguments or embraced legal principles
which contradicted views they have long espoused and which they
would have scorned if proffered by Gore's lawyers.”  As University of
Virginia law professor Michael J. Klarman has written: “Had all the
other facts in the Florida election imbroglio remained the same, but the
situation of the two presidential candidates been reversed, does anyone
seriously believe that the conservative Justices would have reached the
same result?  Thus, the result in Bush v. Gore depended on the order in
which the parties' names appeared on the case caption. . . .  I cannot
think of another Supreme Court decision about which one can say with
equal confidence that reversing the parties, and nothing else, would have
changed the result.”   As I also observed in my article: “For several
decades the Supreme Court has been notably unreceptive to claims that
a person's rights secured by the equal protection clause of the Fourteenth
Amendment were violated, and the Court currently almost always
rejects such claims.  The Court has insisted that unequal treatment
cannot constitute a violation of the equal protection clause unless it is
done purposefully, and the five justices who joined in Bush v. Gore
regularly vote to deny equal protection claims.  Yet in Bush v. Gore
these same five justices based their decision in favor of Bush on a novel,
expansive interpretation of the equal protection clause, and did so
despite the absence of any allegation or proof that the unequal treatment
complained of was purposeful.”  In my article I also stated: “Why,
according to Bush v. Gore, was the Florida Supreme Court’s decision to
recount the presidential votes, based on the state’s traditional standard
that the clear intent of the voter governs, violative of the equal
protection clause?  Because, the five-justice majority strangely held, the
general standard of voter intent was subject to different interpretations
by different vote counters!  But why would this be more harmful to
Bush than to Gore?  And don’t the same or similar disparities in vote
counting equally exist when the votes are counted the first time?  And
why this sudden concern with uniformity at the state level by justices
who, in the name of federalism, ordinarily insist that state governments
be given room for ‘play in the joints’?”  In Bush v. Gore, Justice
Thomas and the other four right-wing justices “acted suspiciously out-
of-character,” Niles, Clarence Thomas: The First Ten Years Looking
For Consistency, 10 Am. U. J. Gender Soc. Pol’y & L. 327, 341 n. 14
(2002).  Thus, Justice Thomas’s vote was not only politically partisan,
but also hypocritical.  Curiously missing in Bush v. Gore are sarcastic
comments by Justice Thomas to the effect that the decision to deliver the
presidency to Bush amounted to a “National Code of Vote Recounting,”
or that the decision was “another manifestation of the pervasive view
that the Federal Constitution must address all ills in our society.”  Also
notably absent are ironical statements by Justice Thomas about judges
acting as “mighty Platonic guardians” of Florida election recount
practices, or about how the Supreme “Court is not a centralized
politburo appointed for life to dictate to the provinces the ‘correct’
theories of democratic representation, the ‘best’ electoral systems for
securing truly ‘representative’ government, [and] the ‘fairest’
proportions of minority political influence.”

Because Bush v. Gore prohibited any further vote recounts, thousands of
Florida voters who had cast legal ballots for President were deprived of
the right to have their votes counted.  Bush v. Gore is therefore a case
where in reality basic rights were denied, not upheld, even though the
decision purports to vindicate equal protection rights.  As I wrote in my
Flagpole article: “The Court's remedy for the equal protection violation
it had strained to concoct was bizarre.  It barred any more recounting,
even though this meant that perhaps thousands of voters whose clear
intention would have been evident to anyone doing the recount would
be denied their legal right to have their votes counted.  The Court
evidently thought it was better that a significant number of legal votes
be ignored than that some questionable votes should be counted.  ‘The
end result,’ [law professor Alan] Dershowitz tells us, ‘was that a large
number of voters who cast proper votes under Florida law but whose
votes were not counted were denied their . . . right to vote for president
in order to ensure that the votes of others would not be diluted by the
improper inclusion of ballots that might be invalid . . . .  This is the most
perverse misuse of the equal protection clause I have seen in my forty
years as a lawyer.’”

Justice Thomas’s participation in the scandalous Bush v. Gore decision
is, without more, sufficient to render him unworthy of being invited to
give the graduation speech.

I urge readers of this letter to personally check out the votes Justice
Thomas has cast on individual rights issues while he has been a member
of the Supreme Court.

There are two Annexures to this letter.  Annexure A is a  bibliography
of suggested helpful writings on Justice Thomas’s voting record in
individual rights cases.  Annexure B is my Flagpole article on the Bush
v. Gore decision.

                           ANNEXURE A

     Bibliography of Books and Articles on Justice Thomas’s
       Supreme Court Voting Record on Human Rights Issues

Books

     1.   C. Smith & J. Baugh, The Real Clarence Thomas:
     Confirmation Veracity Meets Performance Reality (2000)

     2.   S. Gerber, First Principles: The Jurisprudence of Clarence
     Thomas (1999)

Articles

     1.   Gerber, Justice Clarence Thomas: First Term, First Impressions,
     35 How. L. J. 115 (1992)

     2.   Smith & Johnson, The First-Term Performance of Justice
     Clarence Thomas, 76 Judicature 172 (1993)

     3.   Cook, Thurgood Marshall and Clarence Thomas: A Glance at
     Their Philosophies, 73 Mich. B. J. 298 (1994)

     4.   Bell, Clarence Thomas: Evasive or Deceptive, 21 N. C. Cent. L. J.
     194 (1995)

     5.   Smith, The Constitution and Criminal Punishment: The Emerging
     Visions of Justices Scalia and Thomas, 43 Drake L. Rev. 593
     (1995)

     6.   Baugh & Smith, Doubting Thomas: Confirmation Veracity Meets
     Performance Reality, 19 Seattle U. L. Rev. 455 (1996)
 
     7.   Smith, Clarence Thomas: A Distinctive Justice, 28 Seton Hall L.
     Rev. 1 (1997)

     8.   Muller, Where, But For the Grace of God, Goes He?  The Search
     for Empathy in the Criminal Jurisprudence of Clarence Thomas,
     15 Const. Commentary 225 (1998)

     9.   Note, Lasting Stigma: Affirmative Action and Clarence Thomas’s
     Prisoners’ Rights Jurisprudence, 112 Harv. L. Rev. 1331 (1999)

     10.   Niles, Clarence Thomas: The First Ten Years Looking For
     Consistency, 10 Am. U. J. Gender Soc. Pol’y & L. 327 (2002)

     11.  Gerber, “My Rookie Years are Over”: Clarence Thomas After Ten
     Years, 10 Am. U. J. Gender Soc. Pol’y & L. 3 (2002)

    See also M. Garbus, Courting Disaster: The Supreme Court
and the Unmaking of American Law (2002); The Rehnquist
Court: A Retrospective (M. Belsky ed. 2002); J. Dean, The
Rehnquist Choice: The Untold Story of the Nixon Appointment
That Redefined the Supreme Court (2001); S. Gottlieb, Morality
Imposed: The Rehnquist Court and Liberty in America (2000); T.
Yarbrough, The Rehnquist Court and the Constitution (2000);
C. Smith, The Rehnquist Court and Criminal Punishment (1997);
R. Brisbin, Justice Antonin Scalia and the Conservative
Revival (1997); D. Tucker, The Rehnquist Court and Civil Rights
(1995); S. Friedelbaum, The Rehnquist Court: In Pursuit of
Judicial Conservatism (1994); P. Irons, Brennan vs. Rehnquist:
The Battle for the Constitution (1994); J. Decker, Revolution
to the Right: Criminal Procedure Jurisprudence During the
Burger-Rehnquist Years (1992); D. Savage, Turning Right: The
Making of the Rehnquist Supreme Court (1992); Smith, The
Rehnquist Court and Criminal Procedure, 73 U. Colo. L. Rev. 1337
(2002); Wilkins, Worthington, Chow, Chow & Becker, Supreme Court
Voting Behavior: 2000 Term, 29 Hastings Const. L. Q. 247 (2002);
Smith, Criminal Justice and the 1999-2000 U. S. Supreme Court Term,
77 N. D. L. Rev. 1 (2001); Smith, Criminal Justice and the 1998-99 U.
S. Supreme Court Term, 9 Widener J. Pub. L. 23 (2001); Smith,
Criminal Justice and the 1997-98 U. S. Supreme Court Term, 23 S. Ill.
U. L. J. 443 (1998); Gerber, Justice Clarence Thomas and the
Jurisprudence of Race, 25 So. U. L. Rev. 43 (1997); Smith, Criminal
Justice and the 1996-97 U. S. Supreme Court Term, 23 Dayton L. Rev.
29 (1997); Slobogin, Having It Both Ways: Proof That the U. S.
Supreme Court is “Unfairly” Prosecution-Oriented, 48 Fla. L. Rev. 743
(1996); Smith, Criminal Justice and the 1995-96 U. S. Supreme Court
Term, 74 U. Det. Mercy L. Rev. 1 (1996); Smith, The Impact of New
Justices: The U. S. Supreme Court and Criminal Justice Policy, 30
Akron L. Rev. 1 (1996); Wallace, The Eighth Amendment and Prison
Deprivations: Historical Revisions, 30 Crim. L. Bull. 5 (1994); Smith
and Jones, The Rehnquist Court’s Activism and the Risk of Injustice, 26
Conn. L. Rev. 53 (1993); Note, Blinking at Reality: The Implications of
Justice Clarence Thomas’s Influential Approach to Race and Education,
78 B. U. L. Rev. 575 (1998).

                           ANNEXURE B
   
                  A PRESIDENT BY JUDICIAL FIAT


Published in slightly abridged form under the title “We Will Not ‘Move On,’” in Flagpole
Magazine, p. 8 (December 11, 2002).

 The Betrayal of America: How the Supreme Court Undermined the
              Constitution and Chose Our President
                        Vincent Bugliosi
            Thunder’s Mouth Press/Nation Books, 2001
                     166 pp., $9.95, paper
                               
  Supreme Injustice: How the High Court Hijacked Election 2000
                        Alan Dershowitz
                 Oxford University Press, 2001
                  298 pp., $25.00, clothbound
                               
                               
    “It is a sad day for America and the Constitution when a court
decides the outcome of an election.”
    “The ... court’s radicalism went far beyond routine judicial
activism... The ... court did exceed its lawful powers, with astonishing
inventiveness, in a case where the political stakes could hardly be
higher...  Yes, the decision is a scandal.”
    “The action of the ... court is not constitutionally defensible.”
    “Let no one pretend [the court] acted as judges.”
    “[J]udges acting beyond their authority will have effectively
picked the next president.”
    “Judges now select the next president of the United States.”
    “[An] illegitimately gained presidency.”   
    “A presidency achieved by litigation and judicial fiat.”
    “A President by judicial fiat.”
    “[A] blatant and extraordinary abuse of judicial power.”
    “An act of judicial usurpation.”
    “A power grab, pure and simple.”

Harsh words by overwrought, sour grapes Democrats enraged by the U.
S. Supreme Court’s 5-4 Bush v. Gore decision, which exactly two years
ago bestowed the presidency on George W. Bush?  Overexcited rhetoric
by embittered, malcontent liberals and left-wingers critical of the death-
blow that decision inflicted on Al Gore’s candidacy?  Not quite.  They
are instead the fulminations of Republican and right-wing zealots
blasting the Dec. 8, 2000 Florida Supreme Court decision which ordered
a presidential vote recount but was stayed on Dec. 9, and then reversed
on Dec. 12, by the U. S. Supreme Court in Bush v. Gore.

There are scores of books and hundreds of scholarly articles on Bush v.
Gore.  Among the best of these publications are the two books reviewed
here, Vincent Bugliosi’s The Betrayal of America: How the Supreme
Court Undermined the Constitution and Chose Our President, and Alan
Dershowitz’s Supreme Injustice: How the High Court Hijacked Election
2000.  The centerpiece of Bugliosi’s little book is his famous scathing
critique of Bush v. Gore, “None Dare Call It Treason,” originally
published in the Feb. 5, 2001 issue of The Nation magazine.  The
Dershowitz book is calmer in tone and richer in scholarship.  But both
authors fundamentally agree that, as stated on the dust cover of the
Dershowitz book, Bush v. Gore “is the most egregiously partisan ruling
in the Supreme Court’s history,” and that “the court’s majority let its
desire for a particular partisan outcome have priority over legal
principles.”

                      A Dishonest Decision

As Yale law professor Akhil Reed Amar notes, Bush v. Gore “failed to
cite a single case that, on its facts, comes close to supporting its analysis
and result.”  Despite this, despite what Dershowitz calls its “selective
use of inapt cases [as precedents],” Bush v. Gore is not wholly outside
the bounds of legal reasoning.  But this does not mean it is an honest
decision.  It merely proves that, as Dershowitz points out, “clever judges
can always justify their decisions by grounding them in acceptable
interpretations of existing law.”  Thus, in analyzing Bush v. Gore, the
issue is not simply whether the interpretation of the law by the five
right-wing justices who formed the majority (Rehnquist, O’Connor,
Kennedy, Scalia, and Thomas) can be reasonably defended; rather, the
issue is whether the majority’s legal interpretation would have been the
same if Bush had been seeking the recount.  “I believe it is morally
wrong,” Dershowitz writes, “for scholars to defend the majority justices,
even if they think their arguments are theoretically defensible, unless
they honestly believe that the justices themselves would have offered
these arguments in behalf of Gore if the shoe had been on the other
foot.”

And the dispiriting truth is, as both Bugliosi and Dershowitz
convincingly demonstrate, that the majority justices, in Dershowitz’s
words, “tried to hide their bias [in favor of Bush] behind plausible legal
arguments that they would never have put forward had the shoe been on
the other foot.”

In assessing Bush v. Gore, Bugliosi and Dershowitz both make use of
what Dershowitz labels the “shoe-on-the-other-foot test” by pointing out
the instances in which the majority justices, in order to rule in Bush’s
favor, endorsed legal arguments or embraced legal principles which
contradicted views they have long espoused and which they would have
scorned if proffered by Gore’s lawyers.  Thus, Bugliosi begins his
famous essay with this famous paragraph:

    “[In Bush v. Gore] the Court committed the unpardonable sin of
being a knowing surrogate for the Republican party instead of being an
impartial arbiter of the law.  If you doubt this, try to imagine Al Gore’s
and George Bush’s roles being reversed and ask yourself if you can
conceive of Justice Antonin Scalia and his four conservative brethren
issuing an emergency order on December 9 stopping the counting of the
ballots (at a time when Gore’s lead had shrunk to 154 votes) on the
grounds that if it continued, Gore could suffer ‘irreparable harm,’ and
then subsequently, on December 12, bequeathing the election to Gore on
equal protection grounds.  If you can, then I suppose you can also
imagine a man jumping away from his own shadow, Frenchmen no
longer drinking wine.”

Bugliosi and Dershowitz are not alone in noting that the shoe-on-the-
other-foot test exposes the partisan shabbiness of Bush v. Gore.  For
example, University of Virginia law professor Michael J. Klarman has
written: “Had all the other facts in the Florida election imbroglio
remained the same, but the situation of the two presidential candidates
been reversed, does anyone seriously believe that the conservative
Justices would have reached the same result?  Thus, the result in Bush v.
Gore depended on the order in which the parties’ names appeared on the
case caption...  I cannot think of another Supreme Court decision about
which one can say with equal confidence that reversing the parties, and
nothing else, would have changed the result.”

                       Unequal Protection

For several decades the Supreme Court has been notably unreceptive to
claims that a person’s rights secured by the equal protection clause of
the Fourteenth Amendment were violated, and the Court currently
almost always rejects such claims.  The Court has insisted that unequal
treatment cannot constitute a violation of the equal protection clause
unless it is done purposefully, and the five justices who joined in Bush
v. Gore regularly vote to deny equal protection claims.  Yet in Bush v.
Gore these same five justices based their decision in favor of Bush on a
novel, expansive interpretation of the equal protection clause, and did so
despite the absence of any allegation or proof that the unequal treatment
complained of was purposeful.

In our legal system there is no such thing as a one-case rule, and the
right-wing justices who constituted the majority in Bush v. Gore have
on prior occasions denounced the notion that a judicial decision can ever
be a “unique disposition.”  Nevertheless, after unexpectedly and
atypically enlarging equal protection rights, the Bush v. Gore majority
endeavored to ensure that its expansion of rights would never benefit
anyone other than Bush, asserting (with “effrontery and shamelessness,”
Bugliosi notes) that its ruling was “limited to the present circumstances,
for the problem of equal protection in election processes generally
presents many complexities.”  As Dershowitz comments waggishly:
“Like a great spot-relief pitcher in baseball, this equal-protection
argument was trotted out to do its singular job of striking out Vice
President Gore and was immediately sent to the showers, never to
reappear in the game.”

Under Florida statutes and court decisions, a voter casts a legal vote that
must be counted if, despite any error by the voter or by the voting
machine, the intent of the voter clearly appears from the face of the
ballot.  Why, then, according to Bush v. Gore, was the Florida Supreme
Court’s decision to recount the presidential votes, based on the state’s
traditional standard that the clear intent of the voter governs, violative of
the equal protection clause?  Because, the five-justice majority strangely
held, the general standard of voter intent was subject to different
interpretations by different vote counters!  But why would this be more
harmful to Bush than to Gore?  And don’t the same or similar disparities
in vote counting equally exist when the votes are counted the first time?
And why this sudden concern with uniformity at the state level by
justices who, in the name of federalism, ordinarily insist that state
governments be given room for “play in the joints”?  To quote Bugliosi:
“Varying methods to cast and count votes have been going on in every
state of the union for the past two centuries, and the Supreme Court
[prior to Bush v. Gore] has been as silent as a church mouse on the
matter, never even hinting that there might be a right under the equal
protection clause that was being violated.”


The Court’s remedy for the equal protection violation it had strained to
concoct was bizarre.  It barred any more recounting, even though this
meant that perhaps thousands of voters whose clear intention would
have been evident to anyone doing the recount would be denied their
legal right to have their votes counted.  The Court evidently thought it
was better that a significant number of legal votes be ignored than that
some questionable votes should be counted.  “The end result,”
Dershowitz tells us, “was that a large number of voters who cast proper
votes under Florida law but whose votes were not counted were denied
their ... right to vote for president in order to ensure that the votes of
others would not be diluted by the improper inclusion of ballots that
might be invalid...  This is the most perverse misuse of the equal
protection clause I have seen in my forty years as a lawyer.”

                        Irreparable Harm

The most palpably dishonest aspect (Bugliosi calls it a “maddening
sophistry”) of Bush v. Gore was the majority’s claim that it could not
permit  any further recounting because under Florida law any
presidential vote recount had to be completed by Dec. 12.  (Bush v.
Gore was decided at 10 p.m. on Dec. 12.)  Actually, there was no
Florida legal requirement that presidential vote recounts be completed
by a specified date.  (The original recount underway when the Supreme
Court stopped it probably would have been completed by Dec. 12 if the
Supreme Court had not entered its stay order on Dec. 9.)

The stay itself is incomprehensible unless it is acknowledged that the
majority justices who granted it were acting in a partisan fashion.  The
rule is that the Supreme Court is supposed to grant a stay of the
judgment of a lower court only if the party seeking it makes a
substantial showing that in the absence of the stay he will suffer
irreparable harm.  Yet in Bush v. Gore, Dershowitz shows, “the balance
of harms ...  unmistakably were on the side of Gore...  If the counting
was stopped, Bush would win...  What possible harm [to Bush] could
result from merely counting ballots by hand?  If the Supreme Court
ultimately ruled that these ballots should not have been counted, they
could have been eliminated from the tally.”  The only conclusion to be
drawn from the granting of the stay is that, as The New York Times said
at the time, it was “highly political” and that it gave the appearance of
“racing to beat the clock before an unwelcome truth would come out.”

                       Making Presidents

Because of the strong evidence that Bush v. Gore was, in the words of
Prof. Klarman, an example of “partisan preferences trumping law,”
supporters of the decision have few lines of defense.  One involves
raising the flag of pragmatism by taking a result-oriented approach.  The
decision, they say, saved the nation from a constitutional and political
crisis in which the issue of who won the presidency would have had to
be decided (as the Constitution provides) by Congress.  There are three
problems here.  First, the recount, if it had been permitted to go forward,
might have resolved the election dispute; and even if the election had
ended up in Congress that body might well have resolved the
controversy before the scheduled inauguration.  Second, the pragmatic
argument presupposes that courts are (to borrow words used by Justice
Thomas in another context) “mighty Platonic guardians” better able to
resolve political disputes than elected politicians.  Third, as Bugliosi
rightly says, the pragmatic argument boils down to this absurd assertion:
“If an election is close, it’s better for the Supreme Court to pick the
President, whether or not he won the election, than to have the dispute
resolved in the manner prescribed by law.”

Another possibility for Bush v. Gore defenders is for them to accuse
their opponents of irresponsible criticism of a court decision.  But in
light of the frenzied attacks launched against the Florida Supreme Court,
taking this course of action is untenable, for to do so would expose Bush
v. Gore defenders as hypocrites who maintain that, in Dershowitz’s
words, “judicial fiat is to be condemned when it produces a Gore victory
and praised when it produces a Bush victory.”

Another option for Bush v. Gore defenders is to call their opponents
sore losers–to admonish the decision’s critics to cease complaining
about the plain fact that five right-wing Republican justices, appointed
by right-wing Republican presidents, installed a right-wing Republican
as president.  But it is absolutely certain that right-wingers would still be
raging deliriously if the Florida Supreme Court decision had prevailed
and Gore had become president by virtue of the recount.  Bill Kristol,
the doyen of right-wing and Republican militants, announced, after the
Florida court’s decision (but prior to its reversal in Bush v. Gore):
“[S]ome of us will not believe that Al Gore has acceded to the
presidency legitimately...  We will therefore continue to insist that he
gained office through an act of judicial usurpation.  We will not ‘move
on.’”  Is it only right-wingers who are permitted to “not ‘move on’”?

For decades right-wing Republicans have excoriated “liberal judicial
activists” on the federal bench and labored (with great success) to
replace them with “strict constructionist” federal judges who “will
interpret the law, not make it.”  Although five of their justices, in a
stunning display of partisan politics cloaked in the forms of law, have
elected a president, the right-wing Republicans solemnly deny that the
five justices are activists.   And perhaps they are literally correct.  After
all, they said their judges would not make law; they never said their
judges would not make presidents.
   
   
Note: The Dec. 9, 2000 decision of the U. S. Supreme Court staying the
Florida Supreme Court decision ordering a recount is reported at Bush
v. Gore, 531 U. S. 1046, 121 S. Ct. 512, 148 L. Ed. 2d 553 (2000).  The
Dec. 12, 2000 decision of the U. S. Supreme Court reversing the Florida
Supreme Court decision and prohibiting any further recount is reported
at Bush v. Gore, 531 U. S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000).