Now that Sandra Day O’ Connor is stepping down from the Supreme Court we can begin to address the painful legacy she has left us all by inserting herself into the 2000 presidential election. The 5 to 4 decision to stop the hand counting of ballots, which overturned the ruling of the Florida Supreme Court, will be remembered as a seminal event in US history, sending US democracy and prestige in the world into steep and, perhaps, irreversible decline. The decision was made by invoking the 14th Amendment, the “Equal Protection” clause, which had never been used previously for anything other than civil rights cases. The argument was that candidate George Bush would suffer “irreparable harm” if the counting of votes was to continue. As it turned out, even the ultra-conservative attorney Robert Bork disputed the feeble rationale of the Bush defense strategy. Nevertheless, by the thinnest of margins, Bush prevailed, and the 200-year democratic mandate was successfully overturned. It was clearly the most partisan ruling in Supreme Court history. As for American democracy, it has suffered mightily under the current regime. The nation has seen sweeping changes in the laws that have traditionally protected civil liberties, culminating last week in the signing of a presidential order that will create a National Security Service, America’s first secret police.
O’Connor was also a part of other less well-known decisions that have paved the way for a more autocratic government in America. In 2002 the high court refused to hear a case that would have challenged the right of the Bush Administration to “round up” 1,100 Muslim suspects and keep them in prison indefinitely without legal counsel and without being charged with a crime. The court’s failure signaled to the president that his power in dealing with aliens is unlimited; a clear departure from prior rulings which provided basic human rights for everyone without exception.
Similarly, the court refused to hear the case of Jose Padilla, an American citizen unlawfully arrested by the Bush Administration without a shred of evidence establishing his guilt. Padilla has been in solitary confinement for over three years and has never been charged with a crime. His arbitrary imprisonment confers absolute power on the president to incarcerate American citizens at his own discretion without fear of reprimand from the court. The foundational principle of American jurisprudence, the “presumption of innocence,” has thus been overturned by O’ Connor and her fellow jurists.
These cases should remind us that the Bill of Rights is of no value if the court refuses to uphold the law. O’ Connor’s place on the bench has been an invaluable asset to the Bush Administration and its aspirations to enhance executive power while diminishing personal liberty. She has played a vital role in the unraveling of American democracy and set the nation on a course that will precipitate years of struggle.
A great deal has been made of O’ Connor’s impassioned commentary addressing the indefinite detention of prisoners in Guantanamo Bay. O’ Connor said, “Threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen's core rights to challenge meaningfully the Government's case and to be heard by an impartial adjudicator. We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation's citizens. Even the war power does not remove constitutional limitations safeguarding essential liberties. The Great Writ of habeas corpus is an important judicial check on the Executive's discretion in the realm of detentions . . . It would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge.”
O’Connor’s remarks were widely praised in the press but, in fact, the court never issued a clear ruling that would require the administration to comply with the law. O’Connor’s statement has had absolutely no effect on a recalcitrant Defense Dept that has stubbornly refused to process any of the Guantanamo inmates through the judicial system. It was all just more empty rhetoric designed to perpetuate the status quo.
The most powerful indictment of O’ Connor was given by Justice John Paul Stevens in his dissenting opinion issued in response to the 5-4 decision to overrule the Florida Supreme Court and stop the counting of votes in the 2000 presidential election:
“It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.”
Sandra Day O’ Connor has inflicted incalculable damage to the nation and its people.
Mike Whitney lives in Washington state, and can be reached at: firstname.lastname@example.org.
* ... And a Justice for All by Walter Brasch
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