Comment: Contempt of Court

Of course, much has been written about this historic U.S. Supreme Court case that put an end to Al Gore's challenge to the election results in Florida. Yet to understand just how subversive Stevens' dissent is, it is important to reflect on a particular phrase used by Stevens, which, like all words in Supreme Court decisions, was very deliberately chosen.

Stevens writes "that we may never know with complete certainty the identity of the winner of this year's presidential election." Complete certainty regarding the identity of the winner, however, is established by the very opinion from which Stevens dissents.

The Court ruled by a majority of 7 to 2 that the recount ordered by the Florida high court was unconstitutional, and by a majority of 5 to 4 that no further counting could lawfully be done, thus ensuring that Florida's certification of Gov. Bush would stand. The assertion that the winner could remain uncertain in the wake of these holdings can stem only from a belief that the court's decision is somehow less than authoritative.

There is uncertainty, of course, about the identity of the candidate for whom a majority of the people intended to vote. Indeed, thousands of citizens across the country intended to vote for one candidate or another but failed to express that intent in a legally cognizable way. Some would-be voters improperly marked their ballots; others, equally well intentioned, failed to show up at the polls. But the intentions of would-be voters are irrelevant to the identity of the winner of the election – at least to anyone who respects the rule of law.

Justice Stevens' disregard for judicial authority is especially disturbing because it incorporates the same fallacy Gore supporters used in their threats to "count" invalid ballots after Bush's victory to determine the "true winner." It is an inauspicious moment in constitutional history when such nonsensical efforts, founded on contempt for the law, find support in the words of a U.S. Supreme Court justice.