Jewish World Review Dec. 12, 2000 / 15 Kislev, 5761
Does Justice Scalia really believe
Americans can't take the truth?
ATTORNEYS FOR GEORGE W. BUSH and Al Gore
worked late into the night Sunday in preparation
for Monday's U.S. Supreme Court hearing, and
there appears to be a chance that by Monday
evening Bush will know that he is the next
That seemed to be the signal the Supreme Court was sending over the
weekend when it ordered that the counting of ballots in Florida must cease
until it hears the case.
No one questions the Supreme Court's authority to do this -- or virtually
anything else it chooses to do. But one statement that Justice Antonin Scalia
made as the court ordered the stay is quite troubling -- and it should be
troubling not only to Gore supporters, but to Bush supporters, because the
ramifications will last far beyond this dispute.
"The counting of votes that are of questionable legality does in my view
threaten irreparable harm to [Bush] and to the country, by casting a cloud
upon what he claims to be the legitimacy of his election. Count first, and rule
upon legality afterward, is not a recipe for producing election results that have
the public acceptance democratic stability requires."
Now ... after Monday's arguments, the Supreme Court may indeed overturn
Florida's highest court, and give the country compelling reasons why it is
doing so. That's fine -- that is what the Supreme Court is there for: to make
the toughest decisions.
But by saying he wanted the counting of the ballots stopped because if the
American people knew the results, such knowledge would "[cast] a cloud ...
[undermine] the public acceptance democratic stability requires. ..."
Well, that's a potentially dangerous path Justice Scalia is herding us onto. He
seems to be saying: If the American people know the facts (i.e., what the
counting of the disputed ballots in Florida would reveal), they might not be
able to handle those facts if the ballots were later found to be illegal.
"Democratic stability" requires "public acceptance" of election results, Scalia
says ... thus, for stability's sake, the people are better off not knowing.
Nonsense. If the Supreme Court, after Monday's hearing, determines that the
disputed ballots in Florida are not legal, then those ballots will be tossed out.
That's the way our country runs -- what the Supreme Court says is the final
And had the disputed ballots shown that Gore was ahead, then the Supreme
Court would have explained to the citizens why those ballots were unlawful,
and why they would have to be set aside. It would have been highly
controversial -- but Supreme Court decisions often are.
This, though -- Scalia's clear implication that the American people are better
off not knowing what the ballots even said -- reflects a kind of haughty
paternalism, as if Scalia is patting the public on the head and saying, "This is
too complicated for you to deal with. You're not worldly enough to
understand all this. Knowing the ballot count would only confuse you."
Courts today have a difficult enough job -- and the U.S. Supreme Court,
because it so often operates in secrecy, has a special burden. In an era in
which any glib and self-confident ideologue with a daily radio or TV show
can exert more influence (but not power) than any court, the courts --
particularly the Supreme Court -- must make their decisions so clear, logical
and impeccably reasoned that the public will say: I may not agree with this,
but I respect it.
Justice Scalia is said to be a brilliant man. So he ought to be smart enough to
Approximately 50 million Americans cast their votes last month for George
W. Bush. Approximately 50 million Americans cast their votes for Al Gore.
Those 100 million voters have a right to know exactly what happened to their
ballots -- and for them to be told that they are better off not knowing is a
perilous thing to do. Justice Scalia ascended to his high office in a different
way -- the number of Americans who went to the polls to vote for him is
zero. He would be well advised to be sensitive to that fact as he is telling the
voters they are better off not knowing. His words come uncomfortably close
to: "You can't handle the truth."
All of us will know eventually, anyway. Regardless of what the U.S. Supreme
Court decides, those ballots in Florida will soon enough be seen and
examined by someone -- the press, civic groups. Whether Justice Scalia
wants us to know or not, we're going to know.
Whoever our next president is, he will be gone in four years -- eight years at
the most. The Supreme Court, though, will be with us forever. We need to
trust it -- not just its power, but its reasoning. For all of our sakes, including
its own, it should address us with care.
All of us will know
JWR contributor Bob Greene is a novelist and columnist. Send your comments to him by clicking here.
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©1999, Tribune Media Services