What a miserable, badly written, tawdry document the US Supreme Court ruling turned out to be. I spent the early hours of last Wednesday poring over its 65 pages, before finally reaching an inexorable conclusion: that it had done its best to close off all further doors and judicial loopholes for Al Gore, thus effectively ensuring the anointment of Boy George as president. Having halted the counting of 43,000 uncounted votes in Florida at the weekend, the 5-4 majority on the Supreme Court was telling Gore that the recount in Florida could resume - but only if counting rules changed and if there was time, which there wasn't.
That is why the 76-year-old Chief Justice William Rehnquist, appointed to the court by Richard Nixon 28 years ago, was determined to rush out the decision by 10pm Washington time on Tuesday evening: in theory, the ruling he wrote gave the Florida Supreme Court just two hours before a midnight deadline to draw up new standards on how they counted votes. Then they would have to notify all 67 counties in the state of the new rules, and immediately start organising the resumption of the counting. The results would have to be collated and then certified - and all this would have to be accomplished in the intervening two hours between the issuance of the verdict and what the court deemed to be the midnight deadline. It was thus a supreme judicial fait accompli: it would be impossible to resume and complete the recount the Supreme Court itself had halted more than three days before, even though, at that stage, only a few hours had been required to complete the recount that might well have given the 43rd presidency to Al Gore. Game, set, match, and championship point, as Dan Maskell would have said, Boy George.
We will now look back on Election Farce 2000, I suspect, as an educational one in which Americans learnt some bitter lessons about their country. They discovered that their elections, when close, are as suspect and shambolic as those of many a third world country; that bipartisanship - particularly when the commissars of the Republican politburo seek to spin public opinion and mobilise mobs to intimidate local canvassing boards - quickly flies out of the window with the smell of power; and, most of all, that the notion of an independent, non-political judiciary as the third wing of the US government is the fiction it has always been. I wrote after the election results how they showed the nation to be both divided and polarised; nothing epitomises this more succinctly than the US Supreme Court ruling that followed 35 days later.
Perhaps the most shaming moment of all came when Justice Antonin Scalia - a 64-year-old Reagan appointee to the Supreme Court - first gave his reasons for halting the recount of votes in Florida. That recount might cast "a cloud upon what [Bush] claims to be the legitimacy of his election", he thought. Well, quite; the rightness of Boy George's claim on the White House was always a given to Republicans, even though more Americans voted for Gore than Bush nationwide and that common sense suggests that more intended to vote for Gore in Florida, too. What is more, Scalia went on, tallying uncounted votes - and then ruling on their legitimacy afterwards - "is not a recipe for producing election results that have the public acceptance democratic stability requires". Put simply, the learned Scalia believed that the American masses simply could not be trusted to know election recounts - lest, presumably, instability results if and when they discover that the wrong man is to be in the White House.
If we had any doubts about the political leanings of the majority of the Supreme Court, we need know little more. Scalia's son Eugene works for the Los Angeles law firm of Gibson, Dunn and Crutcher - where Ted Olson, the man who pleaded Boy George's case before the Supreme Court, also happens to be a senior partner, steeped in the same right-wing ideology. Clarence Thomas, at 52 the youngest member of the Supreme Court and by far its weakest and most mute member, was an appointee of George Bush Sr; his wife works for the right-wing Heritage Foundation, currently collecting CVs from eager job applicants in a Boy George administration. Predictably, Thomas obediently associated himself with the two far-right judges - Rehnquist and Scalia - in the most extremist parts of the ruling.
What is remarkable is that such blatant partisanship in the Supreme Court is rarely commented on. While the flukes of history mean that seven out of the nine Justices were appointed by Republican presidents, in Florida the reverse is the case - with six of the seven state Justices there being chosen by a Democrat governor. But James Baker, Boy George's 70-year-old frontman, never hesitated to impugn the integrity of the Florida courts when decisions went against Boy George: one judge hearing a case brought by a Democrat privately (seeking to throw out votes because of Republican ballot fiddling) was publicly lambasted before she heard the case, on the grounds that she was a black woman who had been passed over for promotion by Bush's kid brother, Governor Jeb. She could not possibly rule fairly, Republicans wailed - before she threw out the case and was then promptly upheld by those equally suspect Florida Supreme Court judges.
The US Supreme Court, I have to say, is not the institution Americans are taught to believe it to be. In its early days at the end of the 18th century, its members were not even sure whether it had the power to consider the constitutionality of laws passed by Congress. Then it gradually evolved into what it is today: a powerful, unelected arbiter that collectively decides on legislation like racial discrimination, the death penalty, abortion, and so on.
In considering its decision in Bush v Gore, the nine Justices were not just effectively deliberating on who will be the 43rd US president - but also on who will get to choose their successors (with the necessary two-thirds Senate ratification), possibly in as many as four cases, following voluntary retirement or death.
Thus Supreme Court Justices always tune pragmatically into the political ethos of the day, whatever the hallowed US constitution they are supposed to interpret impartially actually says. I have a friend here whose great-great-grandfather sat on the Supreme Court in perhaps its darkest hour, in 1857. Then Chief Justice Roger Taney put its dilemma succinctly: "Can a negro, whose ancestors were brought into this country and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States?" In other words, were blacks US citizens?
Chief Justice Taney and my friend's great-great-grandfather decided the answer was "no": blacks were "beings of an inferior order, and altogether unfit to associate with the white race".
What is more, "there are two clauses in the constitution which point directly and specifically" to support this view. By thus deciding in 1857 that, as a black man, Dred Scott was "not a citizen of Missouri within the meaning of the constitution", the US Supreme Court opened the doors for the Jim Crow laws of racial segregation, and lynchings, which degraded the south for a century to come. Even blacks returning from fighting in the Second World War were turned away from polling-booths because they were deemed to be not of "good character"; only LBJ's Voting Rights Act of 1965 started to remedy this, and the Reverend Jesse Jackson says that many black voters were turned away in Florida, even this year.
Even accepting that this has been just about as close an election as could be, the slipshod voting systems that were used obscured the results in a way that was not only harmful, but which could happen in no other western country. What is supposed to be an impartial judiciary, charged with applying the law in a manner above politics, has been shown to be a sham. Laws like those of the electoral college - said in 1787 by one of the Founding Fathers, John Adams, to be necessary lest the masses "glide insensibly" towards an unsuitable presidential candidate - have been exposed as the essentially anti-democratic measures they were designed to be. The wretched Justice William Rehnquist, I suspect, may turn out to be remembered as the Taney of this century. And Boy George inches ever closer to becoming King George the Pretender - the first president who won fewer votes than his opponent to assume office since 1888.
