The Passing Of A Great American Justice

The death at age 99 of retired Supreme Court Justice John Paul Stevens will be mourned, particularly by old Democratic liberals, for a range of well-balanced opinions over a career that made him the third longest server on the highest court.

Perhaps the best remembered and significant was his dissent in the dramatic 2000 divided case that awarded the American presidency to Republican nominee George W. Bush over Democratic nominee Albert Gore after a long and disputatious recount of the vote in Florida.

The court by a 5-4 decision sanctioned enough ballots to give the Oval Office to the son of former President George H.W. Bush, but only after Gore had once conceded the election to Bush and then hastily pulled his concession back as it appeared the outcome was still in doubt.

Beyond the closeness of the final tally, the Supreme Court under Chief Justice William Rehnquist, a Republican, bypassed the customary adherence to state elections law. He invoked Article II of “federal constitutional law” in its equal protection clause to justify the action that in the end gave the presidency to Bush, by awarding all 25 of Florida’s electoral votes to him, one more than he needed.

Stevens, himself, considered a moderate Republican when sworn in, wrote at the time; “The Constitution assigns to the states the primary responsibility for determining the manner of selecting the Presidential electors. … (I)t is our settled practice to accept the opinions if the highest courts of the States as providing the final answers.”

He went on: “On rare occasions, however, either federal statutes or the Federal Constitution may require federal judicial intervention in state elections. This is not such a occasion. The federal questions that ultimately emerged in this case were not substantial.”

Stevens added for emphasis: ‘What must underlie petitioners’ (Bush lawyers) entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit.”

He pointedly concluded: “The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial systems that is the true backbone of the rule of law.”

There could have no more sweeping defense of his profession and criticism of his conservative colleagues, including Rehnquist, Antonin Scalia and Clarence Thomas, in a decision of such huge political consequence.

Stevens capped his stinging judgment of them by adding: “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.”

Nineteen years later, we now also know that the decision brought into the presidency a man who more than two years later took this country into a war based on false information that Iraq had weapons of mass destruction aimed at the West that were never found.

Bush’s secretary of state, Gen. Colin Powell, abetted the deed by testifying of their existence to the United Nations, an act he later described regretfully as “a blot on my record.”

Bush nevertheless was elected to a second presidential term, yet he saw his early popularity wither, largely as result of that invasion, its failed consequences and the damage it inflected on America’s reputation in the world community, not yet forgotten here or elsewhere.

Jules Witcover’s latest book is “The American Vice Presidency: From Irrelevance to Power,” published by Smithsonian Books. You can respond to this column at juleswitcovercomcast.net.