The Supremes Hit a Sour Note

The one point of agreement between Democrats and Republicans about the last Presidential election is that both sides proclaimed it to be “historic.” In fact, the only two occasions in which a Presidential election was so close were in 1801, when Thomas Jefferson won the tiebreaker in the House over Aaron Burr, and the “disputed” election of 1876, when Samuel Tilden won the popular vote but had the victory maneuvered away from him by Republican Rutherford B. Hayes.

“Historic,” in this case, means different things to the different parties. If you are a Republican, it means that Vice-president Al Gore was prevented from mounting endless recounts until he got one he liked. If you are a Democrat, it means that the Republicans used every tactic of power politics to steal the election. Personally, I have always been an Independent, but I must admit that the Republicans continue to do their best to turn me into a Democrat.

For example, during the impeachment proceedings, when it was blatantly obvious that the Republicans were willing to permanently damage the office of the Presidency in order to bring down Bill Clinton, I thought surely they would be punished at the polls. It did not turn out that way. Both sides, for their own reasons, avoided both Clinton and the impeachment attempt like the plague. For Gore, this was a terrible tactical blunder.

The Florida debacle must surely set some sort of record for political cynicism. From the start, conflicts of interest aside, it was perfectly clear that George W.'s brother intended to do all he could as governor of Florida to secure the election. The Republican-controlled legislature declared its intent to award the electoral votes to Bush regardless of the will of the citizens of Florida. Republican lawyers were able ultimately to stifle the recounts.

With the possible exception of the American people, the biggest loser in all of this was the Supreme Court. We like to think of the Court as representing a higher set of values, above the partisan political fray. Generally that has been true, but not this time.

Reading the Court decision is a disturbing experience. It is a purely political document, with little legal or rational foundation. The five-to-four decision to halt the recount becomes even more distressing in view of the fact that the chief architect for the majority opinion was Antonin Scalia, who is widely rumored likely to be named Chief Justice under the Bush Administration.

“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.”

Without question, the Court suffered an enormous loss of prestige, from which it will be a long time recovering. Speaking for the minority, John Paul Stevens wrote:

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 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 Nations confidence in the judge as an impartial guardian of the rule of law.

So what does the outcome of the 2000 presidential election mean for psychoanalysis and for our Association? So far, the appointments made and those still under consideration by the President have shown a distinct hard right conservative tilt. This is not good news for us. Our experience in the battle to protect privacy has been that the most overtly invasive bills tend to be Republican-sponsored. With the Republicans in control of the Presidency and the House, and with a split in the Senate, it is unlikely that meaningful patient-protection legislation will be passed in the next two or possibly four years. However, it is absolutely predictable that we will see an acceleration of legislation that, if enacted, would favor corporate control and access to health care data.

We have always worked both sides of the aisle whenever we could. Obviously, this becomes even more critical in the present circumstance. We need to work even harder to convey to key Republicans that voters — as every poll shows — increasingly consider privacy a critical issue. We need to continue to block damaging legislation. We need to continue to cite Jaffee v. Redmond and file amicus briefs in key legal cases.

The bottom line for us as a result of this election? We have to intensify our legal and legislative efforts to protect our patients and our profession. The good news is that we are getting a lot better at it.