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Supreme Vote Suppression

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I simply can’t urge you strongly enough to read the article in the most recent Vanity Fair about Florida 2000–it’s just magnificent, clearly putting inside baseball from the court’s clerks in the larger political context. Courtesy of the superb SCOTUS blog, you can (and must) read it here. Then, make sure to read Digby’s commentary. The overall contours of the article’s inside info about Bush v. Gore won’t be shocking to people who follow the Court. Breyer and Souter were played for saps, the dissenters erred in providing cover in the initial decision, O’Connor never considered voting differently. The most interesting revelation is that Kennedy initially voted for Gore, bit switched after a conversation with Scalia and the Federalist Society hacks in his chambers.

There is one revelation that I haven’t seen mentioned much which I think is extremely important. To her clerks’ dismay, Ginsburg relegated a discussion of the various ways in which the African-American vote was suppressed to a footnote. This is bad enough, but what’s worse is that, at the urging of Scalia (who dismissed it as “Al Sharpton” rhetoric) she took the footnote out. I don’t think anything could better encapsulate the remarkable cynicism and lawlessness of Bush v. Gore. In the course of ginning up a phony equal protection justification to hand the election to their preferred candidate–an argument so transparently unserious they were unwilling to apply it as a constitutional principle for future cases or to apply the only logical remedy in the case at hand, in both cases with no legal justification–the Court conspicuously ignored actual grievous inequalities in the Florida vote, many of which were based on techniques that have been used to suppress the black vote since Reconstruction. In other words, in an alleged equal protection case, it was considered beyond the pale to adduce overwhelming evidence of actual discrimination. And this is particularly damning for Scalia/Rehnquist/Thomas, who have argued that (in spite of the lack of textual support) that the equal protection clause requires heightened scrutiny only for racial classifications. Whatever contempt has been directed at the Court’s conservatives, it’s not nearly enough.

Ginsburg’s willingness to play ball is also a further demonstration of Digby’s point. The liberals are simply playing at a different level, inexplicably assuming their opponents are acting in good faith no matter how much evidence of the opposite accumulates. While it’s the thieves of the 2000 election who deserve the most blame, let’s not forget that the timorous likes of Christopher, Gore, Lieberman, and Ginsburg made it a lot easier

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