Do you think the Rehnquist 5 should be prosecuted or pardoned?

RESPOND to this Question

• Stanford's library of documents relating the Selection 2000 - Looking for the legal papers for this illegal selection? Check here!

• Thanks, Justice Scalia! "...the Supreme Court's radical move to block the recount last December has to go down in history as the most shameful moment of the Florida debacle. Almost a third of Americans polled after the decision said it weaken ed their trust in the Supreme Court; certainly it worsened relations among its nine members. Even Scalia's ideological allies had to acknowledge the thin legal undergirding for the decision, but in their heart of hearts t hey could defend it as doing the right thing for the wrong reason, perhaps, a good decision justified badly.... Now it seems Scalia argued for the wrong thing for the wrong reason, tarnishing the Supreme Court and the presidency with one rash move. The president gets another shot at electoral redemption every four years, but it's not clear what it will take to redeem the court

• A badly flawed election, by Ronald Dworkin - "The 2000 election has finally ended, but in the worst possible way—not with a national affirmation of democratic principle but by... fiat... ."

• Exchange between Charles Fried and Dworkin on this - "Bush’s cabinet appointments (which include, as attorney general, John Ashcroft, the candidate of the religious right) have already refuted the optimistic assumption that he will try to govern from the middle, and there is ample reason to worry that his future Supreme Court appointments will be equally aimed at pleasing the extreme right of his party."

• The court packs itself - I fear that Bush v. Gore will provoke another great renaissance of legal nihilism in our nation's law schools, a cynicism that will slowly erode general confidence in the system. Which leads to my question: If the Court has betrayed the nation's trust in the rule of law, how should the nation respond?

• Irreparable Harm: The Unexpected Origins Of The Supreme Court's Worst Decision - Author Renata Adler reviews a new Bush v. Gore book by E. J. Dionne and William Kristol. Along the way, she succinctly dissects the true meaning of the decision for us today, and for our future American generations. An exceptionally powerful summation!

• Basic Truth: Bush Didn't Want All The Votes Counted - Helen Thomas, Dean of the White House Press Corps, tells it like it is: "Now that the U.S. Supreme Court has ruled, the American people will have one clear view of the presidential 2000 election contest: Texas Gov. George W. Bush did not want all the Florida votes counted. That's the bottom line. That's the story that will go down in the history books."

• He Still Dares Call It Treason - Updated summary of "The Betrayal of America" is succinct, pointed and well worth reading!

• Some Notes to Wrap Up the Election - Tightly woven and reasoned discussion of the Supreme Court decision.

• Family ties, political bias linked US Supreme Court justices to Bush camp - Less publicized have been the intimate personal connections which link the Supreme Court majority to the Bush campaign and the Republican Party, connections that would, in an ordinary criminal or civil case, require judges to recuse themselves from any decision.

• ELECTION 2000: WE WAS ROBBED - The books on Florida 2000 are starting to come out....

• Bandits in Black Robes - Why you should still be angry about Bush v. Gore

• Justices engage in spin, by Helen Thomas - "Oh, how the mighty have fallen."

• Scalia: "A dead Constitution -- that’s what I’m selling"

• Scalia Speaks - "The Constitution is to protect us against the will of the people.”

   

• To Scalia, the Constitution died with the Bill of Rights - "If the thinking of Supreme Court Justice Antonin Scalia in laying out his "originalist" theory of the Constitution, which he declared a dead rather than a living document, is followed to the end he is espousing, all amendments other than the original first 10 would be negated and the South's "peculiar institution" of slavery would be back in business.”

   

• Scalia lacking consistency - "Justice Scalia has shown a remarkable inability to adhere to the doctrines he embraces, particularly when adherence will lead to results in conflict with the agenda of the far right.”

   

• The vapid Justice Scalia - "People can agree to disagree regarding Scalia’s politics. But even legal conservatives who share his dim worldview would have trouble making a case for him as a lecturer.... It’s too bad that the biggest joke of the day was the argument he attempted to make for his approach to the law.”

   

• Tony Scalia: the fixer - "When a political operative can say he successfully stole the presidency for the candidate of his choice, then he can also say that he is the best at what he does. And, after last fall, there’s not much question that, as political fixers go, Tony Scalia’s the champion.”

   

• George Bush won. But at what cost to the law? The Supreme Court Shot Itself in the Foot While Shooting Down Al Gore - "For any constitutionalist, the proper reaction to the U.S. Supreme Court’s majority opinion in Bush v. Gore is dismay. In dispensing with the Florida high court’s efforts to resolve a confusing election-code tangle, derailing the election-contest process in Florida, and sidestepping the constitutionally established mechanisms for deciding disputed elections, the U.S. Supreme Court has done more than exceed the bounds of limited judicial power -- it also confirmed the most cynical view of how the nation’s top court operates."

• More on Scalia Speech - "When you enshrine new rights in the Constitution, you are impoverishing democracy."

• Bork's take on Bush v. Gore - "... the Supreme Court, at considerable cost to itself, saved us, at least momentarily, from a further precipitous decline in our public morality."

• Clarence Thomas Speaks at Last: "The Founders warned us that freedom requires constant vigilance, and repeated action." - Hey, he's right: look what happened when we depended on the Supreme Hacks to do their sworn duty and uphold the Constitution. (Oops, how uncivil of us...)
  

   

• The Case for Impeachment, By Dave Chandler
  
  
• Supreme Court Rules: Your Votes Are Worthless," Mark Levine, Esq.'s wonderful Q&A on the High Court's decision. You'll at least smile with this one.

• Transcript of Rehnquist Hearings - in which a witness revealed how Rehnquist intimidated Arizona voters in the 60s.

• Rehnquist -- Political Puppeteer - "When William Rehnquist swore in George W. Bush as president on Jan. 20, the U.S. Supreme Court chief justice completed a near-decade-long struggle by conservative jurists to put their political allies in control of the U.S. government – a victory that marks a radical shift in American democracy."

• Mark Levine's home page, since his article keeps growing
  
  
• Anthony Lewis: A Failure of Reason, "How can I convince my students now that the integrity of legal reasoning matters?"
  
  
• A Force to Reckon With, Jonathan Schell
  
  
• The Nation Two Nations, Once Again, Eric Boehlert, The Nation : "Black and white America are worlds apart in the way they view President-[s]elect Bush, and how he came to power."
  
  
• Ballot Lock Box, Boston Globe Editorial

• Essays on Bush v. Gore, by various authors

• The Supreme Court Commits Suicide. Disgrace, by Jeffrey Rosen. "Surely, we agreed, the five conservatives would step back from the abyss. ... They didn't. Instead, they played us all for dupes once more. And, by not even bothering to cloak their willfulness in legal arguments intelligible to people of good faith who do not share their views, these four vain men and one vain woman have not only cast a cloud over the presidency of George W. Bush. They have, far more importantly, made it impossible for citizens of the United States to sustain any kind of faith in the rule of law as something larger than the self-interested political preferences of William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O'Connor."
  
  
• We'll Hail the Chief When We're Ready, Eric Zorn, Chicago Tribune

• None Dare Call It Treason, Vincent Bugliosi, The Nation

• Some Dare Call It Treason... - Reader response to Bugliosi's article

• 554 Law Professors Say
  
  
• Rehnquist -- Political Puppeteer By Robert Parry
  
  
• The Unprincipled Jurisprudence of Justice Scalia: Reflections in the Wake of Bush v. Gore - "I have often heard people say that although one might disagree with Justice Scalia on his values, one must at least admit that he is consistent and principled in his positions, over the range of cases. A careful examination of his decisions, however, shows this not to be the case."
  
  
• Equal Protection Run Amok - DiIulio says Ginsburg's dissent is "resoundingly right on law and precedent"
  
  
• The Court Packs Itself According to Bruce Ackerman, Justice Stevens said "the majority's decision to halt the Florida recount is a blatantly partisan act, without any legal basis whatsoever" about which "the silence of leading conservative academics is deafening."
  
  
• US Code: When Judges Must Disqualify Themselves
  
  
• Lawyers Discuss Courts, Elections
  
  
• Election Case a Test and a Trauma for Justices

• Court Defends Handling of Election

• 2 Justices Defend Court's Intervention in Fla. Dispute - Kennedy and Thomas say it was their duty to install Bush

Board of Trustees of the University of Alabama v. Garrett

• The Supreme Court v. Balance of Powers - Larry Kramer, March 3 NYT: "The conservative justices seem to have grown comfortable reading the Constitution in ways that ignore precedent, past practice and the considered judgment of other government institutions. This must be resisted. We need to hear from our political leaders."

• Justices Give the States Immunity From Suits by Disabled Workers - "A legislature is not a court of law" - Justice Breyer in dissent.

• The High Court's Low Blow to the Disabled - A Supreme Court decision that states don't have to make "reasonable accommodations" in the workplace could gut the ADA

  Notes on the Garrett Decision

  You may find the following links highly pertinent to the continued states' rights / federal civil rights debate that was pivotal in the Garrett decision and may prove even more critical in future judicial nominations and civil rights legislation.

  From this hearing, it would appear that Senator Jeffords, like many of us, is disturbed by the current trend of states' rights Supreme Court jurisprudence. Professor Hamilton, who clerked for Sandra Day O'Connor is the only person to testify in support of the current line of jurisprudence. Professor Kimel from the Kimel age discrimination case also testified, but as of yet his testimony has not been linked to the Senate's website.

  Professor Strauss asserts that this Supreme Court is extremely reactionary, comparing it to the Lochner and early-New Deal Courts. He suggests several congressional remedies for the Supreme Court's expansion of its own power at the expense of anti-discrimination civil rights protections under federal law. I have not read these fully, but believe that they will be pivotal to successful advocacy for federal judicial appointments and congressional legislation that will be needed to reverse the erosion of disability and other civil rights that should be protected under the 14th Amendment.

  Daniel Davis
  VP Disabled Students Union
  NDSU Leadership Team Member

  Please note the testimony is all in Adobe Acrobat format, which requires the Acrobat reader plugin. If you don't already have this plug-in, you can download it free here.

  • Statement of Senate Chairman of Health Education Labor & Pensions Committee
  • Pro Civil Rights: Michael Gottesman Chief Counsel for Garrett in University of Alabama v. Garrett
  • Professor David Strauss, University of Chicago Law School
  • Pro-States Rights: Prof Marci Hamilton of Cardoza Law School Yeshiva University - contends that record of state discrimination was thin, but surprisingly says the Court was talking about Title II -- when Garrett pertained to Title I.

  ---

  Other decisions, other travesties, ongoing injustices

  Sandoval

• 1964 Civil Rights Act Latest Anti-Discrimination Law to be Eroded by Supreme Court - Justice Stevens in dissent: ``a decision unfounded in our precedent and hostile to decades of settled expectations.... In order to impose its own preferences as to the availabilities of judicial remedies, the court today adopts a methodology that blinds itself to importance evidence of congressional intent"

• Bad Decision on Civil Rights - The Supreme Court in recent years has changed the ground rules that determine when citizens can sue to enforce the law. In the past it was often assumed that a right to sue existed unless Congress expressly forbade it. The justices, seeking to reduce the role of the courts in national life, reversed the presumption: No right exists unless Congress explicitly confers it. But the Civil Rights Act was written under the old assumption. The majority said that it was merely being faithful to the text of the law. But in effect it rewrote the measure, went out of its way to do so and weakened an important guarantee in the process.

• Justices Limit Bias Suits Under Civil Rights Act - "This decision will have a major impact on hundreds of pending cases, particularly in higher education and the environmental justice area"

• Impact of Sandoval decision on anti-discrimination issues could be far-reaching - "This is a bombshell ruling in many respects, because it cripples efforts to declare policies discriminatory when there's no discriminatory intent"

  Atwater

• An Unreasonable View of the 4th Amendment - One of the Rehnquist court's trademark mistakes has been to inflate its own role at the expense of other, more democratic institutions empowered by the Constitution. Article II gives key roles in deciding presidential elections to Congress and state officials, but the court snatched power to itself in Bush v. Gore last December. The Reconstruction amendments explicitly empower "Congress" to enforce them, yet the Rehnquist court has struck down a slew of congressional civil-rights laws in recent years--every one of these invalidations an unjustified assault on a coequal branch. In its latest decision, the court similarly gave insufficient thought to the possibility that someone other than itself--in this case, a jury of ordinary Americans--might be trusted to do the right thing.

• Conover: Latest Supreme Court ruling paves the way for the DNA testing of us all - "It makes perfect sense in states that compel all arrestees to provide DNA samples for the growing DNA databases. And therein lies the horror of this ruling....And you thought you lived in a free society, where individual rights and privacy were protected, eh? Wake up! You are staring into the face of "friendly" fascism that turns uglier by the day. We no longer have government of, by and for the people. It is now government of, by and for the corporations. Corporation that have installed their puppet in the White House and are now eyeing the rest of the world. Consent of the governed? You must be joking, the governed don't get the chance to consent to anything in a police state."

• Bush likely to nominate ADA opponent - Bush to nominate Jeffrey Sutton, a former Scalia law clerk and the attorney who argued against the ADA before the USSC

• Federal Offense: Our Discriminating Court, by Jeffrey Rosen - "But the Circuit City ruling wasn't an anomaly. It was the latest--and clearest--evidence that the Supreme Court's so-called federalism revolution isn't really about states' rights at all. Instead, it's about the determination of the five conservative justices to claim exclusive authority to decide what counts as illegal discrimination in America."

• The Court Usurps Congressional Power - NY Times Editorial
  
  
• The Spleen: Run for the Hills! - "We are witnessing a truly unique shift in political philosophy and balance of power in the nation's government. ... watch for it. The war is on."

  Packing the Court

• Bush Delays Judicial Nominations
• Blocking Judicial Ideologues - By virtue of his office, Mr. Bush has the undisputed power to nominate judges, but moderates and liberals do not have to move aside passively for confirmation of ideological jurists whose agendas call for diminishing women's reproductive freedom and eviscerating the powers of the federal government and the courts in protecting civil rights and the environment....senators have a right to make sure that he does not use the appointive power to distort the balance of the federal judiciary for decades to come.

• Even Before Bush Can Name Them, Democrats, GOP Clash Over Judges - In sharp rejoinder, Sen. Orrin G. Hatch, the Utah Republican who chairs the Judiciary Committee, said Democrats need to accept that the election is over and Dictator Bush 'won'.

• Democrats Block Justice Picks: Senators Protest GOP Change in Judicial Vetting - Sen. Schumer: "They [the Bush administration] intend to abrogate the Senate's role in choosing judges so that they can choose the most ideological bench that we have seen in America ever"

• Specter Seeks ABA Role in Nominations: Senator Urges Bush to Reverse Earlier Move - "Democrats are going to fight," said a senior Senate Democratic aide. "The White House could see a very significant delay in their nominations if an accommodation can't be worked out."

• Foil Bush's Maneuvers for Packing the Court - The right-wing bloc on the court should not be permitted to extend its control for a decade or more simply because it made rulings that cleared the way for Bush to take the White House.

• White House Prepares Judicial Nominating Blitz: Push Reflects Fears of Losing Senate Control - The Bush administration, worried that the GOP could lose its fragile Senate majority at any time, is preparing to send in early May a massive block of as many as 40 nominations for federal district and appeals court as part of a high-priority operation to put the federal judiciary firmly in the hands of conservatives.

• Packing the Supremes - "You and I need to be prepared to oppose George W. Bush's nominees to the Supreme Court," declares the group's president, Kate Michelman. "It could happen next week. It could happen next month." But when it does, she argues, it could "strangle reproductive freedom for many years to come."

• Foil Bush's Maneuvers for Packing the Court - The Bush administration's peremptory ejection of the American Bar Assn. from its traditional role in vetting nominations makes senatorial scrutiny especially imperative

• Bush to Reveal First Judicial Choices Soon - "There is an uneasy feeling among Democrats about Bush's intentions toward the federal judiciary"

• Congress and the Court - To protect the role of Congress as an independent branch of government, to help repair the damage the Supreme Court has done to itself, and to restore a balance to the government that will inspire the people's confidence, the Senate must give the deepest and most independent scrutiny to whatever Supreme Court nominees, if any, it considers. And it must without hesitation reject any nominee who might in any way deepen the blight of politics that now infects the court.

• Seating New Judges May Take a While - Sen. Leahy: "I did not want to see Democrats doing what the Republicans did for six years, the way they held up people ... for no reason, not allowing votes. And the first response we get is a step from the White House which has guaranteed to slow down the process.''

• Bush Would Sever Law Group's Role in Screening Judges

• The Bar disbarred - "This notion that politicizing the judicial selection process will lead to a more professional judiciary is pure farce, of course. This is a raw power grab of outlandish proportions."

• Here Come the Judges - "If ever there was a time for mobilizing a counteroffensive, this is it. Bush has no mandate to add more weight to an already rightward-tilting federal bench. The Supreme Court's patently political ruling in Bush v. Gore has shaken its credibility. There is a growing constituency for judicial integrity and against a rollback of individual rights.... Fight early, fight often and fight to win."

• Dems Still Support ABA Judge Review

• If ABA out, move likely to right - "It was Republican Dwight D. Eisenhower who first asked the ABA to supply a panel of 15 lawyers to screen nominees before their names were announced to the public, a method that invites more frank and helpful comment about judicial qualities such as temperament, intellect and, yes, ideology."

• John Dean: The Woefully Insufficient Evidence behind the White House's Claim That the ABA's Screening of Judges is Political "...compassionate conservatives neither forget nor forgive. The current committee is being held responsible for the actions of its predecessors — actions occurring during the years of the Reagan Administration.... before abandoning a half-century of practice, a more compelling case would need to be made. So far, the evidence is insufficient."

• Senate Judicial Battles Loom

• High Court Upholds Forced Arbitration - Clauses Keep Workers From Filing Suits

• SUPREME COURT 4 — CONGRESS 0: How The Court Has Rejected Congress's View Of Civil Rights In Four Recent Cases - "The Rehnquist Court appears to have forgotten ... history. In case after case over the last four years, the Court has mandated its own narrow conception of the rights protected by the Fourteenth Amendment, rejecting Congress's broader one. That is unfortunate, not only because it disserves the Amendment's historical purposes, but also because it undermines fundamental principles of democracy."

• The Federalist Society - The Conservative Cabal That's Transforming American Law

• Don't Be Fooled. They're Activists, Too - If their theory of federalism were fully implemented, the results would startle liberals, centrists and a good many conservatives as well. Venerable laws and regulations in vital sectors such as health, environmental protection, telecommunications and welfare would be struck down or rendered unworkable. Major current proposals -- including Bush's national education standards or social conservatives' national ban on partial-birth abortion -- would not survive court challenge.

• A Majority of One: The O'Connor Court - ...although decisiveness and self-confidence are admirable traits in a legislator, a president or a supreme allied commander, they are not always the pre-eminent virtues in an unelected judge. If Justice O'Connor were a little less willing to resolve our political battles, perhaps we could rediscover the experience of resolving them for ourselves.

• Hold on to your rights, the Federalist Society is in charge

• THE AFFIRMATIVE ACTION WARS: The Clash Between Conservatives’ Positions Last Year And This Year On Whether The Executive Branch Should Defend A Federal Statute - Something tells me, though, that we won’t be hearing many conservatives talking about DOJ’s duty to defend federal statutes, even if DOJ doesn’t agree with them, this time around. Suddenly, they will discover that DOJ has a powerful duty to independently assess the constitutionality of federal laws -- and that such an independent assessment has led DOJ rightly and properly to repudiate the federal affirmative action program before the Court.... No one can expect perfect intellectual consistency all the time. But we live in a legal world where avowed principles are jettisoned pretty much every time they lead to politically undesirable results. In this, Bush v. Gore was merely a stark example. After this week, the affirmative action debate is sure to provide yet another discouraging example that it is foolish to expect consistency.

• Ted Olson's anti-Clinton past - Bush's solicitor general-designate can't hide his connection to the notorious "Arkansas Project" -- "...any senator who ventured to ask the hard questions would quickly discover that the Arkansas Project was no joke."

• Failing Upward, Take Two: Ted Olson Gets a Second Chance to Wreck a Republican Presidency - [When writing your Senator to oppose Olsen] "Don't bother mentioning Olson's partisan Arkansas Project nastiness; that won't sway any minds. Mention instead how Olson's ham- handedness forced Reagan to commit an illegal and stupid act, and to dump his first EPA Administrator, Anne Gorsuch, because of it. That should cause them to take notice."

• Justices to Revisit Affirmative Action in a Test Case for Bush

• Supreme Court Limits Right to Have Lawyer Present

• Court Allows Some Police Interrogation Without Counsel - The decision "will, on a random basis, remove a significant portion of the protection that this court has found inherent in the Sixth Amendment," Justice Breyer said.