December 22, 2000


Supreme Injustice?

By Domenico Maceri

I remember the day I decided to give up my Italian citizenship and become an American. The Italian Consul in New York would not sign the form that would have allowed me to return to Italy for a visit without the danger of being drafted in the Italian army.

I quickly decided I would leave the infamous Italian bureaucracy behind, and with it, what appeared to me a sense of injustice, by becoming a US citizen. In the United States I saw not just opportunities, but the idea that people were more important than rules. The comparative lack of American bureaucracy and by extension a sense of justice represented to me a true government "by the people and for the people."

The recent Supreme Court decision not to allow the recount of votes in Florida shattered my faith in American justice, which, as an immigrant, I cherished. The most disappointing aspect of the Supreme Court decision is embodied in Justice Antonin Scalia and Clarence Thomas. You would expect the Justices to be impartial since they are appointed for life. Yet, their family connections make me wonder.

One of Scalia's sons, Eugene, is a partner in the Washington law firm of Theodore B. Olson, who twice argued for George W. Bush in the Supreme Court's hearings. Another of Scalia's sons works in Florida for lawyers who represent George W. Bush. Perhaps the most blatant example of Scalia's apparent partiality is the moment during the December 11 hearing when Olson was having difficulties answering Justice David H. Souter's questions. Scalia cut in and virtually finished the argument for the lawyer.

Clarence Thomas' family also raise questions about his impartiality. His wife Virginia is helping the Heritage Foundation, a conservative think tank, which collects applications from people seeking jobs in the Bush administration.

Both judges would tell you that their family connections had no effect on their decision and that's why they did not recuse themselves. They were concerned with the rule of law and the "irreparable damage" the recount would have had on George W. Bush.

Sorry. I don't buy it. As an immigrant who struggled to succeed in this country, I have little sympathy for a rich boy who has been given everything, including the presidency of the US. I am more concerned about the irreparable damage done to the immigrants in Florida who were not allowed to vote because of some technicality. I am concerned about the thousands of Florida voters who may have lost the opportunity to cast ballots because their names were wrongly placed on a list of felons.

I am concerned about the thousands of African Americans who voted, but who were told by Scalia and Thomas that their votes were "of questionable legality." I suspect I am most concerned about the irreparable damage done by the Court's decision to the more than 50 million Americans who did not vote for Bush. Scalia and Thomas told us "Sorry, your votes don't count."

Of course, Sandra Day O'Connor, Anthony Kennedy, and William Rehnquist also voted with the majority. All five were appointed by Republican presidents.

Smell a rat? I do. Even Professor Cass Sustein of the University of Chicago, an admirer of the Rehnquist Court, called the decision an "embarrassment." The decision stated that the manual recounting of ballots in Florida would have violated the "equal protection clause" because it was proceeding under somewhat uneven standards and would have caused irreparable damage to George W. Bush.

But if the manual recount ordered by the Florida Supreme Court was unconstitutional because of uneven standards, so was the original count. The initial count, in fact, included different kinds of machines. The optical scanners, used in primarily rich and Republican counties, captured more votes than the punch card machines used in the mostly poor and Democratic counties.

In the past fifteen years the Rehnquist Court has accepted almost no claims of unequal treatment. The Court ruled against the right of African Americans, gays, and even taxpayers to equal protection.

But suddenly, when a Republican presidential candidate is in trouble, they develop a great affection for equal protection. If you listen to the Rehnquist Court, you'd think the only people who are discriminated against are rich white men whose fathers used to be president.

When the Freedom of Information Act enables non-partisan agencies to finish the recount aborted by the Supreme Court we will know the name of our legitimate president. Regardless of the outcome, it's likely that George W. Bush will nominate one or even more Judges to the Supreme Court, since it's no secret that Rehnquist and O'Connor plan to retire in the near future. Will they be replaced by Scalia and Thomas clones?

It's possible, unless the 50-50 split in the US Senate protects us by rejecting such extremists. It's sad to have to pin our hopes on politicians to provide us with justice. But then, the recent ruling by the Supreme Court brings the majority of the Justices below the level of politicians. I have just one question: When do we get to vote against them?

Domenico Maceri (, PhD, UC Santa Barbara, teaches foreign languages at Allan Hancock College in Santa Maria, CA.

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