My fully guaranteed "5-4, not 7-2, freepshow!" cut & paste

[stickdog]

Four dissents = 5-4 vote. By definition.

In the mythical 7-2 split you claim, the 2 are Ginsburg and Stevens.

But what of Breyer and Souter? Perhaps their own personal dissents (not to mention those they joined in with) are the place to start?

Justice Breyer:

"The majority's third concern does implicate principles of fundamental fairness. The majority concludes that the Equal Protection Clause requires that a manual recount be governed not only by the uniform general standard of the "clear intent of the voter,"but also by uniform subsidiary standards (for example, a uniform determination whether indented, but not perforated, "undervotes" should count). The opinion points out that the Florida Supreme Court ordered the inclusion of Broward County's undercounted "legal votes" even though those votes included ballots that were not perforated but simply "dimpled," while newly recounted ballots from other counties will likely include only votes determined to be "legal" on the basis of a stricter standard. In light of our previous remand, the Florida Supreme Court may have been reluctant to adopt a more specific standard than that provided for by the legislature for fear of exceeding its authority under Article II. However, since the use of different standards could favor one or the other of the candidates, since time was, and is, too short to permit the lower courts to iron out significant differences through ordinary judicial review, and since the relevant distinction was embodied in the order of the State's highest court, I agree that, in these very special circumstances, basic principles of fairness may well have counseled the adoption of a uniform standard to address the problem. In light of the majority's disposition, I need not decide whether, or the extent to which, as a remedial matter, the Constitution would place limits upon the content of the uniform standard."

Please read the last sentence and tell me what Judge Breyer's decision on this matter is. Maybe I can help you here: HE DOESN'T OFFER HIS OPINION ON THIS ISSUE!

He continues by saying that the Supreme Court should never have taken this case:

"Despite the reminder that this case involves "an election for the President of the United States," ante, at 1 (REHNQUIST, C. J., concurring), no preeminent legal concern, or practical concern related to legal questions, required this Court to hear this case, let alone to issue a stay that stopped Florida's recount process in its tracks. With one exception, petitioners'claims do not ask us to vindicate a constitutional provision designed to protect a basic human right. See, e.g., Brown v. Board of Education, 347 U. S. 483 (1954). Petitioners invoke fundamental fairness, namely, the need for procedural fairness, including finality. But with the one "equal protection" exception, they rely upon law that focuses, not upon that basic need, but upon the constitutional allocation of power. Respondents invoke a competing fundamental consideration -- the need to determine the voter's true intent. But they look to state law, not to federal constitutional law, to protect that interest. Neither side claims electoral fraud, dishonesty, or the like. And the more fundamental equal protection claim might have been left to the state court to resolve if and when it was discovered to have mattered."

Now combine this with the fact that he joins all of Stevens' dissent and Part I of Ginsburg's dissent.


*****


Here are some words from Justice Souter's dissent:

"It is only on the third issue before us that there is a meritorious argument for relief, as this Court's Per Curiam opinion recognizes. It is an issue that might well have been dealt with adequately by the Florida courts if the state proceedings had not been interrupted, and if not disposed of at the state level it could have been considered by the Congress in any electoral vote dispute."

He then continues:

"In deciding what to do about this, we should take account of the fact that electoral votes are due to be cast in six days. I would therefore remand the case to the courts of Florida with instructions to establish uniform standards for evaluating the several types of ballots that have prompted differing treatments, to be applied within and among counties when passing on such identical ballots in any further recounting (or successive recounting) that the courts might order."

What he is saying is that he doesn't think the equal protection violation makes this case worthy or review or reversal, but as long as it is on the docket and the SCOTUS is wasting the Florida Supreme Court's time, he would suggest remanding it to Florida Supreme Court with instructions to set a statewide standard.


*****


To characterize these dissents as agreements with the majority opinion with the exception of remedy (as the horribly conceived majority opinion attempts to do) is to engage in a boldfaced deception. The fact that both Souter and Breyer (as least in as much as he joins in Souter's opinion) admit that there is an equal protection violation worth issuing an advising opinion on -- AS LONG AS THIS CASE IS ALREADY WASTING TIME BEFORE THE WRONG COURT -- does not in any way shape or form make this opinion a 7-2 opinion to reverse the Florida Supreme Court on constitutional grounds.

You can bet that if there were any way that Souter or Breyer actually could have been compelled to sign ANY part of the main or concurring opinions, these opinions would have been divided into parts in the manner of the dissent so that they could affix their names, and thus authority, to at least a portion of the majority decision. But they did not, and thus the majority opinion's attempt to co-opt their authority by writing the "only disagreement is as to the remedy" is the height of deception. Agreeing that there is a "constitutional problem" does not put Breyer and Souter in full agreement with the majority opinion except as regards to remedy -- and anyone who takes the time to read all the dissents carefully can only come away feeling wholly deceived by the majority opinion's cowardly claim.


*****

Bottom line:

Four dissents = 5-4 vote. By definition.

There simply was no 7-2 decision.

Read the decision and then show me what part of it was joined by 7 justices. Hint: The answer is quite positively NONE.

... not that I really expect any Bush supporter to actually care about counting votes accurately, of course ...

[anarchy1999]

1. You need to include this somewhere.

The Nation
article | Posted January 18, 2001

None Dare Call It Treason
by Vincent Bugliosi

In the December 12 ruling by the US Supreme Court handing the election to George Bush, the Court committed the unpardonable sin of being a knowing surrogate for the Republican Party instead of being an impartial arbiter of the law. If you doubt this, try to imagine Al Gore's and George Bush's roles being reversed and ask yourself if you can conceive of Justice Antonin Scalia and his four conservative brethren issuing an emergency order on December 9 stopping the counting of ballots (at a time when Gore's lead had shrunk to 154 votes) on the grounds that if it continued, Gore could suffer "irreparable harm," and then subsequently, on December 12, bequeathing the election to Gore on equal protection grounds. If you can, then I suppose you can also imagine seeing a man jumping away from his own shadow, Frenchmen no longer drinking wine.

SNIP TO THE END AND PAGE SIX (Most Important, Read Justice Stevens):

Why, one may ask, have I written this article? I'll tell you why. I'd like to think, like most people, that I have a sense of justice. In my mind's eye, these five Justices have gotten away with murder, and I want to do whatever I can to make sure that they pay dearly for their crime. Though they can't be prosecuted, I want them to know that there's at least one American out there (and hopefully many more because of this article) who knows (not thinks, but knows) precisely who they are. I want these five Justices to know that because of this article, which I intend to send to each one of them by registered mail, there's the exponential possibility that when many Americans look at them in the future, they'll be saying, "Why are these people in robes seated above me? They all belong behind bars." I want these five Justices to know that this is America, not a banana republic, and in the United States of America, you simply cannot get away with things like this.

At a minimum, I believe that the Court's inexcusable ruling will severely stain its reputation for years to come, perhaps decades. This is very unfortunate. As Justice Stevens wrote in his dissent: "Although we may never know with complete certainty the identity of the winner of this year's presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in as an impartial guardian of the rule of law." Considering the criminal intention behind the decision, legal scholars and historians should place this ruling above the Dred Scott case (Scott v. Sandford) and Plessy v. Ferguson in egregious sins of the Court. The right of every American citizen to have his or her vote counted, and for Americans (not five unelected Justices) to choose their President was callously and I say criminally jettisoned by the Court's majority to further its own political ideology. If there is such a thing as a judicial hell, these five Justices won't have to worry about heating bills in their future. Scalia and Thomas in particular are not only a disgrace to the judiciary but to the legal profession, for years being nothing more than transparent shills for the right wing of the Republican Party. If the softest pillow is a clear conscience, these five Justices are in for some hard nights. But if they aren't troubled by what they did, then we're dealing with judicial sociopaths, people even more frightening than they already appear to be.


http://www.thenation.com/doc.mhtml?i=20010205&c=1&s=bugliosi