Chief Justice John Roberts Ended the Error with an Error

Eight long years ago, the Supreme Court usurped power from the legislative branch, and appropriated for itself the right to decide disputed elections. Unelected Justices who were not accountable to the people determined who would occupy the highest elective office in our nation. Millions felt shut out of the process and shut out of democracy because of it. It is appropriate that an era of errors which were ultimately caused by the Supreme Court’s biggest error in 55 years was ushered out with another error.

First, let me say that I am not a conspiracy theorist. I was on the Mall, and I saw that massive crowd. It left many speechless. Many of the politicians and Justices who sat on the steps of the Capitol made comments like the following, “My God, look at the crowd.” I think John Roberts was one of them, and that his mistake was an honest mistake caused by nerves. I sympathize with John Roberts personally for what happened, as that is something that will unfairly live on for decades.

What I do not sympathize with is the failed strict constructionist school of thought which John Roberts represents. George W. Bush rose to power, in part, by promising judges who would not legislate from the bench. Yet in the 2000 Bush v. Gore decision, unelected strict constructionist judges unilaterally amended the constitution, ratified the amendment, and disrespected the democratic process in doing so.

Strict constructionists should know what Article I says about disputed elections. Article I clearly states that disputed elections should be resolved by the House of Representatives:

“and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote”

There is a reason for this: the House is elected every two years by the people. A president who could not attain a majority in the electoral college needs to have the validation of the people, and election within Congress does that to an extent. Further, if the person who the House chooses is not who the people really wanted, Members of the House can be voted out of office in a year and a half.

In my view the 2000 election should’ve been decided as the Constitution prescribes. Florida should’ve been allowed to proceed with their recount. Their vote would not have been certified on time, meaning that neither George W. Bush or Al Gore would’ve had a majority in the electoral college.

Instead, five strict constructionist Justices of the Supreme Court decided to re-write Article I and give themselves the power to decide disputed elections. Strict constructionist judge threw out two centuries of jurisprudence which said the courts could not and should not decide political questions. In doing so, these justices exposed themselves to be political hacks who rap themselves in the robe of the Constitution–a robe which also hides their radical social agendas.

Eight years ago the Supreme Court took an action which could’ve endangered the Republic. Our democracy is dependent upon the people trusting the systems and institutions that run it. A citizen has to be confident that his or her concerns will be heard by policy makers and big shots. Yet when citizens confront one Justice responsible for the Bush v. Gore fiasco, he routinely tells them to “get over it.” It seems that Justice Antonin Scalia has forgotten that those random citizens are his bosses; Justice Scalia has forgotten that he serves the people of the United States.

The jurisprudence of the last 8 years was foreshadowed by that rotten 2000 decision. We’ve had decisions which allow people’s homes to be confiscated via eminent domain procedures for private projects. We’ve had decisions that granted the President unprecedented powers and ripped up treaties without legislative input. And the list goes on.

It is somehow fitting that when the Bush era ended yesterday, a representative of the Court which failed the nation eight years ago made a mistake. John Roberts was understandably nervous, but his mistake yesterday ended the era of errors with something that was very fitting: an error.