Calling the Supreme Court to Account

Obama faces dilemma on whether to refer election rigging issues to the courts if the election result is close, but there may be a way round it - and it's the right thing to do whatever the election result may be, because millions of Americans have been denied their basic rights to vote and have their vote count for as much as anyone else's

Unless Obama can win the 2008 election by such a landslide that the Republicans’ election rigging isn’t sufficient to stop him then he faces a dilemma on whether to take the issue to court.

Even if he does win by a landslide taking the issue to the courts, the media and to the streets in marches and petitions would be the only way to ensure that millions of Americans have their democratic and constitutional rights restored; specifically the right to vote and to have their vote count for as much as anyone else's

Just like Gore in 2000 he can probably count on a fair hearing in state courts, but there’s always the danger of those courts deciding to refer the issue to the federal Supreme Court as a U.S constitutional matter rather than one just of state law or state constitution. As Al Gore found in 2000 there’s no chance of a Democratic party candidate getting a fair hearing in the current Supreme Court.

Since all American Presidents except Clinton in the last three decades have been Republicans the Supreme Court is full of judges partial to the Republican cause – and in some cases, more than partial. Only two of the nine current Justices on the court are Clinton appointees (1).

Antonio Scalia – appointed by Ronald Reagan - is a close associate of senior members of the Bush administration. In 2000 he feared he would never be made Chief Justice of the court if Gore won the Presidency. Scalia’s son Eugene was also a partner in the law firm that was representing Bush in the Gore vs Bush Supreme Court case. A second Supreme Court judge in 2000 who’s still there today – Clarence Thomas – was appointed to the court by former President Bush senior. His wife was also recruiting staff for the prospective President Bush junior. A third judge, Sandra Day O’ Connor, a Reagan appointee, had a husband who was a member of a men’s lodge ‘the Bohemian Grove Club’ – along with former President Bush senior and Justice Scalia. So some conflicts of interest there maybe? ; Not exactly neutral arbiters? Maybe it’s no co-incidence that Scalia and Thomas voted the same way on 91% of supreme court decisions? (2), (3).

To be fair some of the supreme court’s most liberal judges – like John Paul Stevens, were appointed by Republican presidents (in Stevens’ case President Gerald Ford), but this might be explained by Stevens’ appointment preceding the emergence of the ‘neo-conservatives’ who manned the Reagan administration and returned under each President Bush. ‘Liberal’ and ‘conservative’ are relative terms and the ‘neo-conservatives’ make traditional conservatives look liberal. In contentious decisions the ‘liberals’ are still being out-voted 5 to 4 by the conservatives though, just as they were in 2000 (3), (4).

However if Obama doesn’t bring the issue to the courts many people may claim that it’s because he has no case that would stand up in court. This would leave him in the impossible position of having to put forward the evidence in court to get it seriously reviewed but risking a ruling on it by a politically biased Supreme Court. There may be a way round this problem though.

One way Obama could get round this problem would be to take the evidence direct to the media and to his campaign website in order to put public pressure on the Supreme Court not to be seen making a partisan ruling. That alone might not be enough though. He’d also have to publicly call on judges with known conflicts of interests to not take part in the Supreme Court’s deliberations and vote on the issue. This would leave the court with two judges considered conservative and four considered liberal – and give Obama a chance of a fair hearing. Even if Obama only got Scalia to stand down it would even things up to four versus four. If the compromised justices refused to stay out of the case Obama could then reasonably refuse to accept their ruling and call for a national strike, marches and sit down protests similar to those which took place as part of the Civil Rights Movement in the 1950s and 1960s.

He could also call on other democratically elected governments not to accept McCain as a democratically elected President and ask them to suspend all trade deals with the US until a properly free and fair election in which all Americans got the right to vote – and have their vote counted – had been held.

This might , in the short term, jar with Obama’s admirable aim of unifying rather than dividing Americans, but on an issue as important as the right of every person in a democracy to be allowed to vote and have their vote count it would be the only responsible thing to do.

Some might accuse him of acting "unconstitutionally", but then what do you call his opponents rigging two elections and attempting to rig a third by unconstitutionally and illegall denying millions of Americans the right to vote and refusing to count the votes of millions more? In reality if he took this action Obama would be upholding the constitutional rights of millions of Americans against the people who tried to take those rights away - and he would be making America respected worldwide as a genuine democracy again and giving Americans reason to feel proud of their country and their newly, democratically elected President.

Hopefully he'll win so heavily that it won't be an issue, but it would still be advisable to have contingencies plan for the "worst case scenario" arising, as the US military do. It would also be shameful if the denial of the basic democratic rights of millions of Americans was swept under the carpet - and that applies whoever wins the election and by whatever margin.

(1) = Wikipedia entry – The Supreme Court of the United States; current membership
http://en.wikipedia.org/wiki/U.S._Supreme_Court#Current_membership

(2) = Guardian 14 Dec 2000 ‘Conservative judges faced possible conflicts of interest’,
http://www.guardian.co.uk/world/2000/dec/14/uselections2000.usa5

(3) = NYT 1 Jul 2007 ‘In Steps Big and Small, Supreme Court Moved Right’,
http://www.nytimes.com/2007/07/01/washington/01scotus.html?_r=1&oref=slogin

(4) = NYT 23 Dec 2007 ‘The Dissenter’,
http://www.nytimes.com/2007/09/23/magazine/23stevens-t.html