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Letters to the Editor A Cynical Supreme Court by Margaret A. Burnham, OF ALL CASES, this one desperately needed that peculiar combination of wisdom, restraint, and a sense of history that the great leaders of our court - Earl Warren most prominent among them - have sometimes demonstrated. Lacking that leadership, of all cases, this one was most likely to expose the political underbelly of the court. After a campaign in which G.W. Bush made ''litigation reform'' and lawyer-bashing one of his themes, his post-election strategy elevated legalistic obstruction to an art form. All of his complaints about the recount process could easily have been satisfied, if there ever had been any will to do so. At the outset, Al Gore offered to recount the whole state, but this was rejected by Bush. Gore asked the Florida Supreme Court to adopt a uniform standard - also opposed by Bush. Instead, borrowing from Joseph Heller's ''Catch-22,'' Bush complained that the absence of a standard was unconstitutional, yet for the court to adopt one would be illegal as well. It is no surprise that a partisan would adopt a strategy of confusion and delay. But the Supreme Court's sad embrace of that approach places the undiluted ideological nature of the hyper-activist Rehnquist court on naked display. In its determination to deliver the election to Bush, the court had to cast aside two centuries of judicial restraint jurisprudence and devise a new equal protection theory -virtually complete consistency in vote counting methods - that has never even been considered, let alone recognized, in any case and certainly never followed in any election before. But it was not even enough to identify a novel constitutional problem. The court also had to prevent the Florida Supreme Court from fixing it. Here, the court overrode hundreds of precedents giving primacy to state court interpretations of state law to find that Florida law does not permit a repair. And worse, in reasoning worthy of Dickens's ''Bleak House,'' the court first ran out the clock until Dec. 12 and then declared that since Dec. 12 had arrived, it was now too late! The truly cynical nature of what the court did is all the more apparent if one examines both the roots and real consequences of its purported legal theory. Application of equal protection law to this relatively minute portion of the balloting process only would make sense if the point were to remedy it. But to use it instead, merely to prevent the recount only gives effect to a larger and more profound discrimination against other voters whose votes were not counted or were less accurately counted by machine. Perhaps the cruelest irony in the court's decision is its use of the equal protection clause not as a shield against discrimination but as an instrument to deny the franchise. In ruling that a recount would establish unlawful distinctions among similar voters and that there is no timely cure for the problem, the court turned on its head the mighty 14th Amendment, adopted in the wake of the Civil War and long the engine of democratic inclusion. Perfect equality in the application of our laws is chimerical and virtually unattainable, and therefore the Constitution does not require it. What it does require is close scrutiny of the motives of public actors to ensure that minority interests are not being shut out. However, here the Supreme Court has cynically applied equal protection law to obscure the genuine inequalities in the election, and thereby totally poisoned efforts to get disenfranchised communities to accept the result. As the complete story of the election emerges, it is becoming clear that black voters were shortchanged, maybe malevolently. The Supreme Court has spent the last 50 years shaping equal protection jurisprudence to redress history's racial horrors, including the application of technicalities to keep blacks from the polls. This endeavor to employ the 14th Amendment to enlarge the political community has not always been successful, and in some measure it has created paper rights without affecting material inequities. But however ineffectual that civil rights project was, the court is now in vivid reverse. Its concern for equal treatment now applies to the dimpled and the pregnant chad, but not to the parade of horrors that disproportionately affected the black electorate. In its reliance on equal protection, it has created the illusion of respect for rights while rendering a raw political result. Far beyond the Brown v. Board problem of articulating a vision of equality that is difficult to realize, the court here, in a grotesque slight of hand, has highjacked the 14th Amendment to eviscerate established rights. Someday, Bush v. Gore will be interred, but if the trail from Plessy to Brown is any guide, it wouldn't be wise to hold your breath waiting. _______________________________________ Margaret A. Burnham, an attorney and former judge, teaches political science at MIT. Margaret Burnham was one of the professors active during the MIT antiapartheid and divestment campaigns in 1985, 1986, and 1990. She was (and probably still is) one of a very few African American women on the MIT faculty. The Review welcomes your letters & comments. Please address all correspondence to: Letters to the Editor o Review Magazine 318 S. Hamilton St. Saginaw, MI 48602
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