Getting Stevens Right The media has twisted his words to their partisan end.
By Randy E. Barnett, Austin B. Fletcher Professor at Boston University School of Law & author of The Structure of Liberty: Justice and the Rule of Law - National Review
Much has already been made by the media of the concluding paragraph of Justice Stevens's dissent, especially the last two sentences: "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 the judge as an impartial guardian of the rule of law." This is being taken as a criticism by Stevens of the impartiality of the justices of the U.S. Supreme Court in deciding this case.
If you read the entire paragraph, however, you will see that this was not a reference to the U.S. Supreme Court at all. Rather, Stevens was referring to the fact that, by siding with Bush, the majority was accepting "an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed."
According to Stevens, the majority cast a pall over the credibility of judges (in this case state court judges) as impartial guardians of the rule of law. (But what if the shoe fits?) Here is the whole paragraph with the critical passages in bold:
What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. 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 the judge as an impartial guardian of the rule of law.
Too bad Stevens did not foresee the uses to which his sentence could be put by determined partisans to undermine the nation's confidence in the Supreme Court itself. |
