Statement of Harvey Rosenfield, President
Foundation for Taxpayer and Consumer Rights
Los Angeles, California
As a non-partisan, non-profit organization which has frequently fought to protect the independence and impartiality of the judicial branch, we are deeply disturbed by the U.S. Supreme Court’s order staying the counting of ballots in Florida. We believe that by this unprecedented action, the Court has called into question its own legitimacy.
It is established law that stays are issued by courts only when necessary to protect the ability of the court to grant the plaintiff justice should the plaintiff ultimately prevail. That is, to obtain a stay, a plaintiff must show that without the stay, the court may be unable to award the plaintiff the relief requested, if the court later rules in favor of the plaintiff.. That is the “irreparable injury” standard of law.
In supporting the majority’s decision today, Associate Justice Scalia stated that the “irreparable injury” facing Governor Bush was the “cloud” upon the “legitimacy” of the Governor’s Election. This is an unprecedented departure from American principles of justice. The Court’s role in the litigation surrounding the Florida vote is not to protect the “legitimacy” of the winner. That is a political matter the Constitution leaves to the political branches, and, ultimately, the American people. The Supreme Court’s role in this litigation is simply to determine if the Florida Supreme Court’s ruling violates the U.S. Constitution. The U.S. Supreme Court’s ability to make that decision — its ability to protect the plaintiff’s legal rights, rather than its political interests, cannot possibly be irreparably harmed by the fact that votes are being hand counted in Florida.
Justice Scalia’s statement that “the country” may experience irreparable harm if the recount continues reflects a dangerous and constitutionally improper view of the role of the United States Supreme Court. The “country” is not a party in the case before the Court. Ensuring that the plaintiff — or the defendant — obtains the “public acceptance [that] democratic stability” requires is neither the Court’s, nor Mr. Scalia’s, job.
There is great public interest in and even controversy over who won the national election. But the statutory and legal process of determining the next president was being followed, at least prior to the Court’s intervention. At this moment, the sole danger to our democracy is that our democratic institutions will refuse to respect that process. So long as our institutions behave as the U.S. Constitution and law requires, there will be no constitutional crisis.
FTCR is a California-based citizen organization. Contact:
Harvey Rosenfield 310-392-0522 x 303