Vincent Bugliosi: "They Got By With It"

Vincent Bugliosi was interviewed on C-Span Book TV on November 4, and it was repeated on the 11th. From 2:06:00 - 2:12:15 in the 3 hour interview, he explains the U.S. Supreme Court's December 12, 2000 ruling handing the election to George Bush, about which he wrote None Dare Call It Treason , and then turned it into the book The Betrayal of America. In this interview, Bugliosi skips past much of the critism of the decision, such as Justice Stevens's dissent, which includes

What must underlie petitioners' 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. 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.

Bugliosi focuses on problems with the Equal Protection rationale for the decision, in plain though sloppy English:

... They based their ruling on a violation of the equal protection clause of the 14th Amendment. Here's what they said. The various Florida counties had different techniques, or different means, of determining voters' intent, ok?. Different ways. So the supreme court ... said well the problem is that some of these under-votes in some counties might be disqualified, and in other county they would qualify. So that's a violation of the Equal Protection Clause of the 14th Amendment, because of these different standards that the various counties have. Now if the court was so concerned about these under-voters, as they so fervently claimed to be, why would they in effect then say we're so concerned that some of you under-voters may lose your votes, because of the different standards, that we're going to solve the problem by making sure that none of your votes are going to be counted. Is that what you do when you're trying to help people? We're going to make sure that none of you under-voters are going to have your votes counted.
[ed note: Bugliosi skirts the possibility of having more under-votes in, say, counties with a more minorities.]

Number 2. Law professors, legal scholars around the country overwhelmingly said this was a dishonorable, politically motivated ruling.

Number 3. There are probably 7 or 8, but I'm going to give you a couple, then I'm going to give you the main reason. If they had followed their own legal precedent, fundamental legal principles, Scalia himself has articulated these very words: You do not have a violation of the Equal Protection Clause of the 14th Amendment unless the discrimination is quote intentional. Or quote purposeful, OK? It's got to be intentional. We're to believe that these canvasing boards in these various Florida counties when they were coming up with their own way, their own standards to determine votes, were intentionally trying to discriminate against the voters of other counties. That's preposterous. [Here Bugliosi seems to lack imagination, and it is not clear why he would say 'other counties'. If one party controls the rules and knows that the majority of the voters in certain voters would likely cast their votes for the opposition party, they may well have an incentive to suppress the votes in those counties.]

Now let me give you as close to a confession as I can give you of what these criminals were up to. They're not going to confess, but I'm going to give you something that's as close to a confession as you're going to get in this case. Again, Scalia himself has said, and it's well known. The primary function of the United States Supreme Court is to set legal precedent. To set forth principles of law that the courts throughout the land have to follow. That's why they're there. To establish legal precedent. Now let me tell you what they did which is tantamount to a confession and which tells all reasonable people that their ruling only had one objective, and that objective was to put their guy in the Oval Office.

For the first time in the 210 year history of the court, first time ever, their ruling, on Equal Protection, they said was quote limited unquote to the case before them. Are you listening to what I'm saying here now? For the first time in 210 years they were not establishing legal precedent. They said their ruling was limited to this case in front of them. Now why? Because they knew that if they were establishing legal precedent as they had been doing for 210 years it would set aside elections throughout the entire country. Because the various states all have different methods of counting voutes, even different methods of voting, and they certainly didn't want to set elections aside throughout the country. So they had the unmitigated gall. They took audacity to symphonic and operatic levels. They said they're going to limit this ruling to this case. Because they knew it's a bogus ruling. So it was unlawful. And you know the bad thing about it, what's scary about it? It's that they got by with it...

I think most legal scholars concur. E.g., UCLA constitutional law and legal history professor Clyde Spillenger called it "The very antithesis of the rule of law". The decision was criticized by Harvard University law professor Alan Dershowitz, asserting in Supreme Injustice: How the High Court Hijacked Election 2000 that "the decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath."

I think we should not confuse the smokescreen around the decision with the idea that reasonable people disagree about what happened.