Those of us who followed events in November and December of 2000 are experiencing déjà vu. Those events culminated in the Supreme Court’s decision in Bush v. Gore 531 U.S. 98 (2000), when a majority of the justices ruled that George W. Bush was the winner of the Florida election, thus handing him the presidency.
There was a sense, among Democrats in particular, that the election was hijacked and unfairly awarded to the Republican by a Republican-dominated Supreme Court.
This was actually not the case, and, indeed, what the Supreme Court was doing in 2000 was correcting a partisan decision by the Florida Supreme Court, which had changed the Florida election rules in a manner that favored the Democratic candidate, Al Gore, by, in particular, changing deadlines for the submission of votes.
Three Justices of the United States Supreme Court, William Rehnquist, Antonin Scalia, and Clarence Thomas made this clear in their concurring opinion. The three indicated that changing the rules in mid-game, as the Florida Court had done, violated due process, and, indeed, usurped the role of the Florida legislature, to whom the United States Constitution accords the making of election rules.
We're about to see the same issue play out regarding votes in Pennsylvania and other states that may decide the winner of the current presidential election.
President Trump alleges election fraud in Pennsylvania, which might well be the best explanation for the manner in which what began as a lead of hundreds of thousands of votes for him in early counting was essentially eradicated.
Whether or not there was outright fraud, it does appear that thousands of mail-in ballots in Pennsylvania which were submitted after the deadline set by the legislature may make the difference in determining the outcome, and, if the Pennsylvania Supreme Court does not eventually reject those ballots, we can expect a repeat of Bush v. Gore in the United States Supreme Court.
There are other complex election issues under litigation in Pennsylvania as well, and similar irregularities in the administration of the election laws in Michigan, Georgia, and Nevada are also expected to be the subject of litigation brought by the Trump campaign.
The president’s prediction before the election that mail-in balloting on an unprecedented scale would likely lead to ballot fraud on an equally unprecedented scale may or may not be correct, but there is no doubt that changing the election deadlines and other rules in the middle of an election, in a manner that violates legislative directives cannot be tolerated.
In 1859, on the cusp of our Civil War, at a ceremony dedicating what was to become the Northwestern University School of Law (where I taught for 42 years), David Dudley Field, probably the leading lawyer of the time, explained that in this country we had rejected monarchy and aristocracy, and, instead had substituted a different system.
Dudley's words are worth reproducing at some length:
"If the decision of litigated questions were to depend upon the will of the Judge or upon his notions of what was just, our property and our lives would be at the mercy of a fluctuating judgement, or of caprice.
"The existence of a system of rules and conformity to them are the essential conditions of all free government, and of republican government above all others. The law is our only sovereign. We have enthroned it."
What first attracted many of us (and a very few intrepid souls in the legal academy) to Donald Trump was that he promised to appoint judges and justices who understood that the task of a judge was not to "make up the law," but to follow the rules that had been laid down by legislatures and the people themselves in their state and federal Constitutions.
This is a promise Mr. Trump has kept.
His promise in this regard is especially apparent with his latest appointment to the Supreme Court, Amy Coney Barrett.
Thus, the president has appointed a third individual known for her adherence to the jurisprudence of Justice Antonin Scalia (for whom she clerked) and who famously echoed the views of David Dudley Field expressed in 1859.
Unfortunately, for decades, the heroes in the legal academy have not been the Scalias or the Fields, but rather the Justices like Oliver Wendell Holmes, Jr., Earl Warren, William Brennan, or Anthony Kennedy.
They believed that it was the job of high court justices to alter the Constitution to — fit the needs of the times.
This view, however, allowed both justices and judges to endanger the sovereignty of the people — and the rule of law.
We are about to find out whether law still governs in our republic, or whether the political preference of state officials and state judges will deprive of us of what Field explained were the "essential conditions of all free government."
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. Read Stephen B.Presser'sReports — More Here.
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