Saturday morning December 9, 2000, I awoke with a sense of dread. Not since the week before the overthrow of the Allende government had I experienced that precise sensation. Before the day was done, my fear had come true: I experienced a coup d’état in my own country.
What is a coup d’état? People often think of it as a situation in which the military intervenes to take over the government. Another common variety, however, occurs when a group which anticipates losing the popular vote simply stops the counting process and takes control over that nation’s government. Typically, there is little or no violence. That is what occurred on December 9, 2000 in the United States.
Despite immense legal and political pressure, on December 8 the Florida Supreme Court boldly ordered that all of the “undercounted” ballots throughout Florida be tallied by the local electoral boards over the weekend. The ensuing jubilation in the Gore camp, and corresponding fury among the Bush forces, indicated that all political actors concurred in the practical effect of that state court’s decision.
The recount tabulation would have resulted in a Florida popular vote majority for Gore.
Thereafter, either public opinion would press Bush to concede the election or, alternatively, the Republican Right would have to attempt to push through Bush’s election by having Congress endorse a slate of Bush electors chosen by the Florida Legislature in the face of a popular voting majority for Gore. Evidently, this second path carried a significant political risk of failing.
Former Secretary of State James Baker expressly confirmed that even were there an official national voting plurality for Gore, and a similar one in Florida after the judicially ordered recount, the national Republican leadership was fully prepared to try to follow this latter path to power. Reasonably enough, however, Baker was reported as believing that it was important, though not essential, to Bush’s presidency that he win from the U.S. Supreme Court as opposed to the other way. When I awoke on Saturday, I knew that unless the federal judiciary intervened that very day (before the recount occurred), Gore would most likely be the next president. Conversely, if the federal courts did intervene to stop the recount, Bush would be the next president.
By Saturday morning the Bush campaign had gone both to the Eleventh Circuit Federal Court of Appeals (twelve judges, eight of whom had been appointed by Presidents Bush or Reagan) and to the U.S. Supreme Court, seeking a stay of the Florida Supreme Court’s recount which was by then well underway. By late Saturday afternoon, the genie would be out of the bottle: the American people would know who really won the election. To halt this recount, one or these higher federal courts would have to issue such a stay order within a few hours.
I was in a state of dread because my political sensibility made me think this outcome was reasonably likely. Remarkably, in an interview a just few days later with vice presidential candidate Joseph Lieberman, he stated that neither he nor anyone he spoke to in the campaign figured that they would stop the counting of votes. Senator Lieberman is a bright and cynical fellow, steeped (as are his campaign staff) in the hurry-burly of American politics. Thus, the veils of bourgeois ideology obscure the nature of state power even from many of those who wield it.
Personally, I was more concerned that the notoriously conservative Eleventh Circuit would act. It seemed problematic to me that the U.S. Supreme Court would intervene prior to holding a hearing, and I knew it would not be able to both hold such a hearing on Saturday and enter a decision by the late afternoon of that same day. As it turned out, I was unduly nervous about the Eleventh Circuit. Its twelve judges ruled unanimously against a stay on the ground that Bush would not suffer any “irreparable injury” from the recounting process itself (as opposed to what legal consequences might ensue from that recount).
The legal rules for obtaining a stay in federal court are something about which I happen to know a good deal. I have repeatedly taught the specific law school courses (remedies and federal jurisdiction) which address the technical parameters of this topic. To obtain a stay of an order of a state supreme court—without the opposing party having the opportunity to be heard by the federal court—requires a powerful showing that what is known as an “irreparable injury” will happen before there is time for the court to hold that adversarial hearing.
A typical example is a stay of execution, where any judicial remedy, even an emergency hearing, would come too late. Many dramas of stage and screen are based upon just this kind of extraordinary judicial problem.
I knew to a moral certainty that, as a matter of completely settled federal law going back literally hundreds of years, there was no “irreparable injury” to Bush from the recounting process itself (nor, for that matter, from its results becoming known to the press.) The reason there was no irreparable injury is that if the Florida Supreme Court had improperly ordered the recount, the Supreme Court could readily enough overturn that outcome, and return the election results to what they were before the recount—namely, to reinstate the Bush electoral certification.
For purposes of the legal system therefore, any harm ensuing from the Florida Supreme Court’s decision and an ensuing recount simply was not irreparable. In our legal system, that took Bush v. Gore out from the narrow exception which allows for stays to prevent irreparable injury, and put it back into the category of the vast majority of cases in which due process requires holding an adversarial hearing before a court can issue a potentially dispositive order on a matter in dispute.
This is as universally settled and agreed upon a legal doctrine as exists in Anglo-American law. It is not simply that this is my expert opinion to which there might well be opposing expert opinion. Rather, as far as I am aware, it is a doctrinal position which is universally held by all legal scholars and civil litigators of whatever political persuasion. Thus, Senator Lieberman and the attorneys on his campaign staff apparently could not even imagine that the Supreme Court might abort the Florida recount.
So too, presented with precisely this issue, every single member of the highly conservative Eleventh circuit unequivocally agreed that there was no irreparable injury, and thus unanimously refused to grant Bush’s request to stay the recount in midstream. But I am no Joe Lieberman. As one who grew up as an activist and radical intellectual, and then spent three decades in often times quixotic litigation, I am quite aware that in highly-politicized crisis settings judges often flagrantly cheat, and the facade of democracy gives way to naked authoritarianism.
Thus while I knew a stay was not a permissible “judicial move,” my sense of dread on Saturday kept intensifying by the hour. And therefore, while horrified, I was hardly surprised when by mid-day a stay was ordered by the conservative Supreme Court majority over the bitter objection of their more liberal colleagues. As described by Linda Greenhouse in The New York Times: “Rarely in the Supreme Court’s modern history have the justices’ often expressed concerns about preserving the court as an institution above and outside of raw politics foundered so visibly. Rarely, if ever, has the court faced such a supercharged political moment across dividing lines of such evident anger and distrust… “ (The New York Times, December 10, 2000).
Under these circumstances, the Supreme Court’s stay was functionally equivalent to a coup d’état: Gore was going to win the vote, so it illicitly stopped the tabulation in order that the right gets its president (regardless of what the American people did at the polls). Justice Antonin Scalia’s short opinion on behalf of the conservative majority, accompanying the Saturday stay order, made it clear that the conservative majority had already decided, prior even to receiving the legal briefs of the parties, to award the election to Bush. The decision was pre-determined. Thus, the oral argument conducted before the Supreme Court on Monday, December 11th, was no more than a sham to put the best face possible on a fait accompli. The brief conclusory majority opinion that followed did not even attempt to justify this lawless act by any plausible legal argument. The coup d’état had been achieved, and the fabric of the ideology of the “rule of law” and “judicial neutrality” had been ripped apart to show the naked force exercised by a handful of hypocritical reactionary judges.