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In 1986, I testified before the Senate Judiciary Committee that William Rehnquist was unfit to be Chief Justice of the United States because he was a partisan, result-oriented jurist who had violated the most elementary rule of judicial ethics -- that no one can be both an advocate and decision-maker in the same case.
My testimony grew out of my personal experience with Assistant Attorney General Rehnquist when, through the law school's Constitutional Litigation Clinic, I was counsel for plaintiffs in the case of Laird v. Tatum, a challenge to the Army's domestic intelligence program. Rehnquist had been the main advocate for the government, defending the program, while the case was in the lower courts, but had been appointed to the bench by the time it reached the Supreme Court, where he cast the decisive vote.
But even I was not prepared for him to lead a bare majority of the Supreme Court in a crass, politically partisan decision choosing the President of the United States.
Not only did the majority invent a totally novel and hypocritical interpretation of the Equal Protection Clause of the Constitution in order to finally overrule the Florida Supreme Court's order for a hand-count of the ballots, it had already guaranteed that the hand-count would never be timely completed by issuing a lawless order staying the recount.
Indeed, it was the stay order of December 9, an action contrary to all previous Anglo-American law, which confirmed that the conservative majority had decided to act as part of the Bush/Cheney legal team and not as a neutral judicial body.
As Justice Scalia conceded in his opinion "justifying" the stay, such an extraordinary writ could be authorized under centuries-old doctrine only where there was clear probability that the petitioner would ultimately prevail AND that irreparable injury would be caused in the meantime in the absence of a stay. Scalia then found irreparable injury in the fact that the recount might show Gore the winner in Florida, thus casting "a cloud upon the legitimacy of [Bush's] election." Thus, the majority was not only declaring Bush the victor without the benefit of briefs or argument, it made the unprecedented determination that irreparable injury existed in the possibility of embarrassment to a future Bush Administration. In other words, the majority substituted prevention of irreparable embarrassment for the traditional requirement of irreparable injury."
Once again I will have to explain to my first-year civil procedure class in the spring that the Supreme Court is not final because it is always right, it is always right because it is final.
