Supreme Power Of Five!
When Secretary of State Katherine Harris certified fellow Republican George W. Bush the winner by 537 votes over Democrat Al Gore in Florida's 2000 presidential election, at least 175,000 ballots remained uncounted. These had been excluded from the state's official machine tabulation. Based on both applicable law and historical precedent, plenty of time remained to manually examine and tally these 175,000 ballots, the majority of which contained easily decipherable votes. Accordingly, on December 8, 2000, the Florida Supreme Court ordered a manual recount of a substantial portion of these uncounted ballots. On December 9, 2000, five members of the U.S. Supreme Court stunned the nation by halting the Florida manual recount, claiming they wished to review its constitutional validity.
With two rounds of Florida election litigation behind them and the presidency hanging in the balance, Americans of all political stripes trusted the U.S. Supreme Court to provide for a satisfactory means of assessing the will of Florida's voters. When night fell on December 12, that faith was betrayed. In a brazen act of deceit, the five-justice majority reversed the judgment of the Supreme Court of Florida ordering a recount to proceed. If the Five's willful, premature conclusion of a presidential election vote count for partisan purposes is not wrongdoing beyond the pale, then nothing is left of this "good behavior" clause. And yet no one in a position of countervailing power has seen fit to call them on it.
This was a dangerous mistake. Not only because it holds the Five harmless at the bar of history, but because it can happen again. Future justices may feel similar license if the Five remain unchallenged.
More recently, The U.S. Supreme Court has ruled that corporations have a First Amendment right to expressly support political candidates for Congress and the White House. The 5-4 ruling strikes down restrictions that had barred corporations from spending money from their general treasuries on campaign ads in the days before an election. The New York Times calls the decision "a doctrinal earthquake." The dissenters said that allowing corporate money to flood the political marketplace would corrupt democracy. The ruling represented a sharp doctrinal shift, and it will have major political and practical consequences. Specialists in campaign finance law said they expected the decision to reshape the way elections were conducted. President Obama found the ruling -- and its obvious implications -- so foul that he condemned it in January's State of the Union address. "The Supreme Court reversed a century of law to open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities," the president said. "They should be decided by the American people, and that's why I'm urging Democrats and Republicans to pass a bill that helps to right this wrong." President Obama called it “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”
And now another decision of far reaching consequences by a 5-4 vote, The Supreme Court has held that Americans have the right to own a gun for self-defense anywhere they live, expanding the conservative court's embrace of gun rights. The court was split along familiar ideological lines, with five conservative-moderate justices in favor of gun rights and four liberals opposed. The ruling is an enormous symbolic victory for supporters of gun rights. In Chicago, Mayor Richard M. Daley said he was disappointed by the ruling because it made the city’s handgun ban “unenforceable.” “Across the country, cities are struggling with how to address this issue,” Mr. Daley said. “Common sense tells you we need fewer guns on the street, not more guns.” In a dissent joined by Justices Ginsburg and Sotomayor, Justice Breyer said that history did not provide clear answers and that the empirical evidence about the consequences of gun control laws are mixed. But there was evidence, he said, that firearms caused 60,000 deaths and injuries in the United States each year and that Chicago’s handgun ban had saved many hundreds of lives since it was enacted in 1983.
The Supreme Court wrapped up its term last week after landmark decisions protecting the right to have a gun and the right of corporations to spend freely on elections. But the country's most important moment may come when the President's ambitious drive to regulate corporations, banks, health insurers and the energy industry will have the final word on those regulatory laws. Many legal experts foresee a clash between President Obama's progressive agenda and the conservative court. Their recent decisions came as a real shock to the administration and to the Democrats in Congress. It's also caused a sea change in their thinking about the court. Before, it was all about the 'culture wars' issues, like abortion, prayer and gay rights. Afterward, they saw this new activist thrust among the conservatives as a direct threat to their legislative agenda.
President Obama chose Kagan for the court believing she could bridge the gap with some of its conservatives. Her mission is to help uphold the laws that Obama and Democrats are pushing through Congress. But this does not provide a permanent solution to the basic problem, the power of five supreme court judges to subdue the power of the people enshrined in the Constitution. The people's elected representatives in the Congress, of any party or political pursuations, must come together to fight this menace and finish it for ever to save democracy. If it needs to amend the constitutional clauses on selection of the Supreme Court judges, to make them independent of political pressures, it must be done before the democratic principles are pushed further down the drain by the supreme power of the five.