In December 2000, then-Rep. Edward Markey was at a charity dinner in Boston, and the conversation turned to the court battle over the disputed Florida election that would determine whether Vice President Al Gore or Texas Gov. George W. Bush would win Florida and be declared the next president. Bush was leading by just over 500 votes in an election marred by rampant irregularities, and the Florida Supreme Court had ruled that state law required that there be a recount.

Bush asked the U.S. Supreme Court to overrule the Florida court and order that the Florida recount then underway be stopped, meaning that he would win the presidency.

Not long before, the staunchly conservative chief justice of the Supreme Court, William Rehnquist, had raised eyebrows by having four gold stripes placed on the sleeves of his black judicial robe, channeling the costume of the all-powerful Lord Chancellor in the Gilbert and Sullivan operetta "Iolanthe." Rehnquist debuted his new gold stripes while presiding over the Senate impeachment trial of President Bill Clinton. The stripes seemed somewhat peculiar, and perhaps even worse than that.

As the nation awaited the Supreme Court's decision, Markey asked the lawyers at his table whether they thought it would review the Florida state court's ruling holding that Florida law required that the votes cast in Florida's election be recounted.

Absolutely not, came the unanimous reply. After all, conservative Supreme Court justices had been forever adamant that federal courts had no business interfering with state law on state matters such as state election procedure. Accepting the Florida case for review would violate long-cherished conservative jurisprudence, or at least what conservatives had long claimed was long-cherished conservative jurisprudence.

"I disagree," said Markey. "Anyone who puts gold stripes on his sleeve is going to take the case."

Markey was right. The majority of the Supreme Court, loyal Republicans all, were delighted to disregard the precedent they had said was sacrosanct, and not only review the Florida decision but reverse it, stopping the recount and ensuring that Bush, not Gore, became president. It had nothing to do with exalted-sounding legal principles. It had everything to do with politics.

Even before the Supreme Court officially overturned 50 years of its own precedent by nullifying Roe v. Wade, a Gallup poll found that confidence in the court had fallen to an all-time low, with only 25% of Americans expressing confidence in America's highest court. That places it lower than body shop cost estimators and insurance adjusters, and with good reason.

The conservative justices who decided that a woman's constitutional right to bodily privacy no longer existed had earned their own stripes insisting that government has limited power to dictate to citizens how to live their lives. So much for that hooey: the court has now ruled that government is entitled to demand that women give birth against their will on pains of being criminally prosecuted. Justices like Neil Gorsuch and Brett Kavanaugh, who gravely assured United States senators of their profound respect for stare decisis — the doctrine that courts should consider themselves bound by judicial precedent — played the Senate for suckers, and it worked. They knew full well that when given the opportunity to eliminate women's right to choose whether to give birth by jettisoning the 1972 Roe decision they would do so — and that's exactly what they did.

We're all suckers now, and there's more to come. Last Thursday the court announced it would consider adopting the "independent state legislature theory," a heretofore fringe argument that would permit state legislatures to determine not only voting rights but whether Republican-controlled legislatures can disregard actual presidential election results and certify their own phony presidential electors without review by state courts or election officials. Four of the conservative justices have already expressed support for this theory.

Twenty-two years ago, Ed Markey observed that things ain't all on the level at the Supreme Court. The question now is whether America will pay the supreme price.

Jeff Robbins, a former assistant United States attorney and United States delegate to the United Nations Human Rights Council in Geneva, was chief counsel for the minority of the United States Senate Permanent Subcommittee on Investigations. An attorney specializing in the First Amendment, he is a longtime columnist for the Boston Herald, writing on politics, national security, human rights and the Mideast.

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