[supreme court]
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A GREAT CASE THAT MADE NO LAW:
A Review of Alan Dershowitz's Book on Bush v. Gore


By STANLEY I. KUTLER


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Friday, Jul. 13, 2001

Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000. New York: Oxford University Press, 2001.

After the Florida Supreme Court ordered a recount of votes in last year's presidential election, William Kristol, editor of Rupert Murdoch's conservative-oriented Weekly Standard, donned his revolutionary armor, and solemnly intoned:

[S]ome of us will not believe that Al Gore has acceded to the presidency legitimately [and] ... we will ... continue to insist that he gained office through an act of judicial usurpation. We will not move on. Indeed, some of us will work for the next four years to correct this affront to our constitutional order.

Ah! the tyranny of journalistic deadlines. Kristol had to say something to his faithful, even though the United States Supreme Court was poised to overturn the Florida ruling — with yet another act of "judicial usurpation."

After the Justices selected George W. Bush, Kristol's colleagues took up the editorial cudgels as if Kristol did not exist and his comments had never occurred. Now, they directed their anger toward those who had the audacity to question the Court's ruling and George W. Bush's accession to the presidency. Such views, the editors said, went "well beyond the merely disillusional and far, indeed, into genuine irresponsibility." No more from this quarter about "judicial usurpation," or an "affront to the constitutional order," or "lack of legitimacy." A court deciding an election suddenly was fine — as long as it had decided it the "right" way.

The "rule of law" had triumphed, and we were lectured that we must acquiesce. Our Supreme Arbiter had spoken. Justice Robert Jackson's perceptive quip about the Court never was more appropriate: "We are not final because we are infallible, but we are infallible only because we are final."

Alan Dershowitz nevertheless remains audacious and unrepentant in his criticism of the majority decision in Bush v. Gore.

The title and subtitle of Dershowitz's book offer their own explanatory preface of what readers can expect, and they won't be disappointed: Only Vincent Bugliosi's critique matches the passion and weight of Dershowitz's analysis. (Richard Posner's forthcoming book may expand the shelf of intelligent Bush v. Gore commentary — but will, unlike Dershowitz's and Bugliosi's books, defend the majority opinion.)

Bush v. Gore: Worse than Dred Scott?

Dershowitz does, however, expose the Court's exercise as partisan politics operating under a thin veneer of law — and quite dubious law at that.

The case, Dershowitz argues, goes beyond the Court's infamous "self-inflicted wound" in the Dred Scott case, in which the majority denied citizenship to any blacks, free or slave, and grafted onto constitutional law the principle that slaves were mere chattel. In Dred Scott, Chief Justice Taney and his colleagues at least ruled consistent with their own beliefs, however wrongheaded or damaging. But in Bush v. Gore, Dershowitz emphasizes that the majority clearly contradicted their oft-stated principles in other cases. His conclusion is blunt: they "cheated" in their determination to legitimate the claims of their chosen candidate; they were "complicit in corruption."

Dershowitz throughout offers his "if the shoe-were-on-the-other foot" test — and finds the majority consistently lacking. If Gore had been ahead in the initial Florida count, would the U.S. Supreme Court have stopped the Florida recount on the grounds that it might cause Gore "irreparable harm"? A laughable proposition, at best.

The Death of "Judicial Philosophy"; the Rise of Politics

Bush v. Gore eventually will mean many things to future commentators. At bottom, the decision stripped bare the notion that something called "judicial philosophy," with its attendant concepts of "judicial restraint" and "judicial activism," now has any relevance.

Presidents do not consider potential Justices with probing questions of philosophy. Crudely put, they simply want to know whether the prospective appointee is on his side. When, in 1902, Theodore Roosevelt considered the appointment of Oliver Wendell Holmes — ironically, one of the few judges with a conscious, articulated "judicial philosophy" — Roosevelt pressed Holmes's supporters whether he was "right" on the trust question, and was assured that Holmes was indeed. Holmes, however, infuriated and confounded the President; his first major opinion dissented from Roosevelt's vaunted trust-busting crusade.

Predicting judicial behavior was once a major inexact science. Now, however, the process for vetting nominations, and applying litmus tests, is far more systematic and thorough. And thus we have Scalia, Kennedy, O'Connor, and Thomas — Republican appointees who can generally be trusted to favor bedrock conservative principles. (John Sununu, apparently a Leninist of sorts, sabotaged the new system when he maneuvered David Souter's nomination by Bush the Elder.)

Chief Justice Rehnquist and his merry band preach a good game of restraint. Justice Scalia regularly chastises the notion of a "self-righteous Supreme Court, acting on its members' personal views of what would make a more perfect union [and] impose [their] own favored . . . dispositions." Never shy about declaring his monopoly on truth, Scalia's views are declared to represent fundamental principles, reflecting the true intentions of the Framers. Justice O'Connor marches through the U.S. Reporter with a similar mantra: "I do not believe ... that the Framers of the Constitution intended the judicial power to encompass the making of such fundamental choices about how this Nation is to be governed."

Nor is it any surprise that, given the chance, the Bush v. Gore majority hacked away at all pretense of respect for history. Rather than following precedent, they — as Dershowitz bluntly argues — laid down a wholly new body of constitutional law, devoid of principles, history, or precedent.

Warning: Judicial Principle, Good for One Use Only

The Court majority, Scalia included, betrayed its partisan objective when it provided a for-one-use-only cover to its decision. Opting for convenience, not principle, the Justices in the majority admitted that: "Our consideration is limited to the present circumstances." Why? "[T]he problem of equal protection in election processes generally presents many complexities," they claimed.

Hardly a surprising dodge for conservative Justices who had to resort to leaning on an Equal Protection notion — a constitutional doctrine they usually abhor and disdain, except perhaps when white folks suffer discrimination as a result of affirmative action. Indeed, if applied generally and conscientiously, the majority's equal protection position would lay waste to their long-standing views in such areas as welfare and death penalty cases, as Dershowitz carefully describes.

The Court's sudden discovery of the virtues of self-abnegation is at odds with Justice Scalia's famous dictum, "The United States does not sit to announce 'unique' dispositions. Its principal function is to establish precedent — that is, to set forth principles of law that every court in America must follow." Scalia earlier uttered one such principle when he argued against:

[the] foreclosing [of] all democratic outlets for the deep passions this issues arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfactions of a fair hearing and an honest fight. . . . We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.

We could call Scalia inconsistent or hypocritical; Dershowitz prefers "cheating" and "corrupting."

The most effective critique of the Court often comes from within, and that was the case with Bush v. Gore — though curiously, Dershowitz virtually ignores it in his book. Justice Ruth Bader Ginsburg's dissent, deeply rooted in precedent and history, neatly captured Rehnquist in his favorite pastime of distorting history. (See, for example, his gloss on Madison and Jefferson's view of the First Amendment's religion clauses.)

The media obsessed on only one sound bite from Ginsburg's opinion, making much ado about nothing for her omission of the traditional "respectfully" from "I respectfully dissent." Had they read her carefully crafted opinion with more attention, they might have understood why contempt, not respect, dripped from her pen.

Justice Ginsburg chided Chief Justice Rehnquist, who, for more than two decades, had been the chief architect for the Court's "cautious approach" when federal courts address state law, and the advocate for "build[ing] cooperative judicial federalism." She also focused on the historical rareness of instances in which the Court had intervened to reverse a state high court's interpretation of state law, as the majority reversed the Florida Supreme Court's opinion in Bush v. Gore.

The Chief Justice cited three such instances, including a landmark ruling from the era of Justice Marshall, Marbury v. Madison's author, and two desegregation decisions. Rehnquist's "casual citation" of these cases, Ginsburg noted, had the effect of indicating they merely reflected a large body of case law that had overturned state courts' interpretations of state law.

Not so. As Ginsburg acidly remarked, the Chief Justice would have been "hard pressed" to find other appropriate precedents, besides the few he cited. Furthermore, the Florida court, Ginsburg noted, had simply ruled that the Legislature's primary goal was to count every legal vote; "that Court," Ginsburg remarked, "should not be bracketed with state high courts of the Jim Crow South."

Ginsburg also dismissed the "deadline" crisis feared by the majority. — predicated on the impending passage of the last day when Florida's certification of its election would be binding on Congress. There was no crisis, she suggested, until the Court stepped in. Florida was up against time pressure because of the Court's own stay of the recount; thus, the deadline pressure was self-imposed, and the Court's prophecy that there was not time for a proper recount was self-fulfilling. "[T]he Court's conclusion that a constitutionally adequate recount is impractical," Justice Ginsburg noted, "is a prophecy the Court's own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States."

Why Dershowitz's Book Matters

Bush v. Gore richly deserves the critical, valuable scrutiny of the sort Dershowitz has offered. This case is not just about law, precedent, and history, however. It is about votes, as both Ginsburg and Justice John Paul Stevens emphasized. Who won? We do not know; at least, we do not know with the conclusiveness of a verdict from the ballot box — the only verdict that should matter, in a democracy.

But our real problem lies with a political system so timid, so paralyzed, that it produces mediocrities who fail to inspire, or fail to lead, and who, ultimately, perpetuate more mediocrity — not only in office, but on the bench as well. We deserve better.


Stanley I. Kutler, a Professor at the University of Wisconsin-Madison, is the author of Privilege and Creative Destruction and The Wars of Watergate.

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