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King Court

O ye, O ye! In the people versus the black robes, the black robes have won. The Supreme Court doesn’t just make law. It now makes presidents.

The legal process has legitimized the winner. With so many votes remaining uncounted, what else could George W. Bush be but the illegitimate winner. The Bastard-elect.

How unbecoming! So of course, it was the high court to the rescue. You’d expect as much if you inherit your father’s court.

In a decision that was as close as it gets to affirmative action for conservatives, the Supremes propped up George W. Bush in a way that even he couldn’t possibly screw up.

The court of mostly Republican appointees made Bush a winner by making it virtually impossible for Vice President Al Gore to do a thing.

First, the court gave itself cover with a long and torturous 60-plus page decision, the reading of which makes passing a kidney stone seem delightful.

In the opinion, seven justices found constitutional problems with the Florida’s court ordered ballot recount, enough to reverse the order and remand it back to the state.

Seven sounds like some sort of consensus. And the term “remand” makes it sound like the Florida court will get a shot at getting it right.

But the nation’s highest court revealed it was just as fractured as the rest of America. It couldn’t agree on a remedy for the constitutional problems of a recount, the most troubling being the varying standards from county to county.

Some wanted a recount, others only under certain circumstances. So in a strange, wimpy, passive aggressive move, the court determined that if any recount was to be done, it had to be done in keeping with the equal protection clause of the constitution. Sounds great, protect the chads. Treat them all equally. But forget the people in this equation. Here’s the catch: Any count had to be done by Dec. 12. That’s the so called “safe harbor” deadline in Florida law set purposefully at six days before the electoral college meets on Dec. 18.

So let’s review. The Supreme Court stopped the recount process two times, the most recent being the stay on Dec. 9, only to ultimately send it back to Florida late on the night of the 12th. That procedural stall left whomever wished a recount approximately two hours to come up with a complete hand count under a uniform standard.

Is there enough caffeine in the world to make that happen?

Besides being unfair, it’s not nice. The ruling is akin to the guys who start walking off the football field with less than 30 seconds left to play. Hey, isn’t there time for one “Hail Mary”? A field goal? A drop kick of Justice Scalia?

Not if the other team walks off the field without tripping on their gowns.

And after all, who says boo to the Supremes? We don’t have a political equivalent of the Four Tops. Game over.

The court has given the remedy of “no remedy.” Furthermore, the judges tried to wash their hands of it all by sending the case back to Florida. Let them push the vice president off the mountain face. Unless he jumps off on his own. It’s justice at the hands of the Republican court majority — Rehnquist, Scalia, Thomas, O’Connor and Kennedy — the political equivalent of a royal flush.

Of course, Justice John Paul Stevens, a Ford appointee, was on to them. In his dissent, Stevens wrote: “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.”

The others to dissent were Souter, Ginsburg and Breyer. And it was the San Franciscan Breyer who spoke most forcefully against the majority, with a shade of what it really meant historically to ethnic minorities. “In this highly politicized matter, the appearance of a split decision runs the risk of undermining the public’s confidence in the court itself,” Breyer wrote. “That confidence is a public treasure. It has been built slowly over many years, some of which were marked by a Civil War and the tragedy of segregation. It is a vitally necessary ingredient of any successful effort to protect basic liberty and indeed, the rule of law itself.”

Breyer’s opinion touched on what that loss of public confidence could mean to the institution that has been more significant than the presidency in upholding civil rights. Breyer wrote, “We run no risk of returning to the days when a President (responding to this court’s efforts to protect the Cherokee Indians) might have said, ‘(Chief Justice) John Marshall has made his decision; now let him enforce it!’ But we do risk a self-inflicted wound — a wound that may harm not just the Court, but the Nation.”

In the end, the court’s action shows us whose votes really count in our republic.

It’s not really the electoral college. It’s not the votes of the 50,158,094 who backed Vice President Al Gore nationwide. It’s not even the 49,820,518 who voted for Bush — 2,913,321 of whom who reside in Florida, about 157 more than Gore, give or take a few “unconstitutional” re-counts. But indeed who’s counting.

In America, all you need is to count to five.