Eric Foner on the Supreme Court

[Louis Proyect <lnp3@xxxxxxxxxxxxx>]

[Eric Foner is a preeminent Marxist historian of the U.S. Civil War.]

The Nation Magazine, COMMENT | January 1, 2001

Partisanship Rules
by ERIC FONER

The Supreme Court decision effectively handing the presidency to George W.
Bush  reveals the intensely partisan nature of the Court's current
majority. The Court, to be sure, has always been political, but rarely as
blatantly as today. Nor are there many precedents for Justices trampling on
their own previous convictions to reach a predetermined conclusion.

Chief Justice Roger Taney enlisted the aid of President-elect James
Buchanan in persuading Northern Justices to join the pro-slavery majority
in Dred Scott. Franklin Roosevelt conferred regularly with Justice Louis
Brandeis, and Justice Abe Fortas served as a trusted political adviser of
Lyndon Johnson. But never has there been a public statement as partisan as
Antonin Scalia's when first suspending the recounts that the Court needed
to insure "public acceptance" of a Bush presidency.

If there is a silver lining, it is that the last month suggests an agenda
for democratic reform. First, the Electoral College should be abolished.
The product of an entirely different political era, when the electorate
excluded women, nonwhites and propertyless males, the Electoral College was
created by a generation fearful of democracy. Its aim was to place the
choice of President in the hands of each state's most prominent men, not
the voters. It unfairly enhances the power of the least populous states and
can produce the current spectacle of a candidate receiving a majority of
the votes but losing the election. At the very least, electors should be
chosen in proportion to the popular vote in each state.

Second, the Florida fiasco should lead to the reform of voting procedures.
As with schools, roads and public services, the wealthiest districts have
the best system of voting. The machines used in poor black precincts of
Florida, the Miami Herald demonstrated, are so flawed that they are
guaranteed to produce a larger number of spoiled or uncounted ballots than
in affluent suburban areas.

One can only view with deep cynicism the Court majority's invocation of
"equal protection" in rejecting a recount. Added to the Constitution in the
Fourteenth Amendment after the Civil War, this language was intended to
protect former slaves from discriminatory state actions and to establish
the principle that citizens' rights are uniform throughout the nation. The
current Court's concept of equal protection has essentially boiled down to
supporting white plaintiffs who claim to be disadvantaged by affirmative
action.

Nonetheless, by extending the issue of equal protection to the casting and
counting of votes, the Court has opened the door to challenging our highly
inequitable system of voting. Claims of unequal treatment by voters in
poorer districts are not likely to receive a sympathetic hearing from the
current majority. But Bush v. Gore may galvanize demands for genuine
equality of participation in the democratic process that legislatures and a
future Court may view sympathetically.

Equally difficult to accept at face value is the majority's disdain for the
principle of federalism these very Justices have trumpeted for the past
several years. Like the South before the Civil War, which believed in
states' rights but demanded a fugitive-slave law that overrode the North's
judicial and police machinery, today's majority seems to view
constitutional principles as remarkably malleable when powerful interests
are at stake.

The next time this Court turns down an appeal by a death-row inmate on the
grounds that federalism requires it to respect local judicial procedures,
the condemned plaintiff may well wonder why his claims do not merit the
same consideration as those of the Republican candidate for President.


Louis Proyect
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