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Supreme Court Justices' Increased Propensity to Speak Publicly:
It May Be Positive At Times, But When the Justices Speak Out On Bush v. Gore, They Only Do Further Damage


Tuesday, Mar. 06, 2007

Back in the 1980s, Justice Harry Blackmun would regularly give a speech at the annual conference for judges and lawyers held by the U.S. Court of Appeals for the Eighth Circuit - the appellate court on which Blackmun previously had served. Inevitably, Blackmun would use the occasion to deliver a few pointed criticisms of his more conservative brethren. And just as inevitably, Blackmun's speech would generate headlines and stir up some consternation among his colleagues about his propensity to discuss Court business outside the Court's cloistered confines.

For journalists covering the Court at that time, Blackmun's annual address was a rare field day at which a sitting justice would let drop a few candid remarks about the Court's inner dynamics. Public speechifying by Justices- and mildly indiscreet speechifying at that - was a rare commodity in those days.

Not anymore. You can barely open a newspaper or turn on the TV these days without seeing one of the justices out on the hustings promoting his or her judicial philosophy (usually at the expense of others'), or extolling the virtues of judicial independence, or just venting. In this column, I'll consider possible explanations for this marked change in the Justices' practices, and also consider if this is a good or a bad development for the Court as an institution.

The Justices' Possible Motivations for Speaking Publicly More Frequently

It is hard to pinpoint why many of the justices (the monastic David Souter remains a notable exception) have changed their attitude toward public relations. Justice Antonin Scalia was the trailblazer - barnstorming around the country to preach the gospel of "the jurisprudence of original intent," his favored approach to constitutional interpretation. One suspects that some of the more liberal justices would have felt compelled to take to the speaking circuit simply to counterbalance Scalia's public relations campaign, irrespective of their other possible reasons for doing so.

One also gets the sense that some of the justices have become increasingly interested in using their stature to help quell the often shrill attacks that are increasingly being launched against the judiciary as a whole -- including the various ballot initiatives and legislative proposals designed to intimidate judges who take unpopular stands.

To the extent that the heightened public profile of the justices educates the public about the Court's work and protects the integrity of the judicial branch, I believe the change should be a welcome one. In my view, this is true even when the revelations are more personal than jurisprudential, such as Justice Ruth Bader Ginsburg's recent revelation that she feels lonely as the Court's only woman, now that Sandra Day O'Connor has retired, or Clarence Thomas's recent angry denunciation of media stories suggesting that he was the beneficiary of affirmative action programs as a young man. These more personal stories give us important insight into the character and temperament of the people who shape our basic laws.

The Justices Are Especially Unpersuasive When Claiming Bush v. Gore Is a Moot Point

However, the justices' newfound loquaciousness also has had some unintended effects. Unfortunately, when the justices address substantive issues in their interviews they occasionally say some quite disturbing things - things that reinforce, rather than allay, the criticisms most often leveled against the modern Court.

Nowhere is this more true than when the justices talk about - and seek to justify -- Bush v. Gore, that much-criticized decision in which a bare majority of five justices effectively called the 2000 election for George Bush by putting an end to the recount of votes in Florida.

The problems start with Justice Scalia, who declared in a recent lecture that Bush v. Gore is old news and that we should all "get over it."

Well, I can certainly understand why Scalia would like to permanently inter Bush v. Gore. It's an embarrassment - a decision that mocks his claim that politics and personal preference play no role in his judicial decision-making.

But some decisions are just too important to relegate to the dustbin of history. And Bush v. Gore is surely one of them. It raised serious questions about the integrity and legitimacy of the Court's decisionmaking and - in calling the election for George Bush, rather than Al Gore -- it had enormous political consequences for the country and the world.

Justice O'Connor, however, rejects responsibility for any of this. In her view, the debate over Bush v. Gore is largely academic because, according to her, even if the Court had allowed the Florida recount to continue, just as Gore wanted, George Bush still would have won the presidency.

As a factual matter, O'Connor may be right. As I understand it, most analyses suggest that, under the particular recount procedure requested by the Gore team and ordered by the Florida Supreme Court (the procedure the U.S. Supreme Court stopped), Bush would indeed have come out on top.

But this fact provides little moral high ground for the five justices who declared Bush the winner. Had the Court decided the case in favor of Gore, it could have mandated a different recount procedure upon remand. A selective recount of only some counties' ballots in the crucial state in presidential election may itself conflict with the Equal Protection Clause.

Moreover, a recount that would have complied with the Equal Protection Clause should have led to a Gore victory. More people who voted in Florida intended to vote for Gore, than intended to vote for Bush. Had it not been for the infamous "butterfly" ballot that led so many south Florida Jews to inadvertently vote for Patrick Buchanan, there never would have been a Bush v. Gore in the first place: Gore would have won from the get-go. In addition, studies show that Gore also would have won if courts had ordered a comprehensive hand recount of all ballots, a simple remedy that the Supreme Court could also have mandated to ensure compliance with the Equal Protection Clause.

Thus, while O'Connor may be literally right that Bush would have won even if the Supreme Court had not stepped in, neither she nor the Court should take any solace in having simply backed the "real" winner. That honor belongs to Gore.

In any event, regardless of how the election would have come out, the Supreme Court has its own set of constitutional responsibilities. And to the extent the Court usurped either Florida's or Congress's constitutional authority or undermined the Court's own legitimacy by calling an election without articulating a reasonable justification, then the issue of who would have won the election absent Supreme Court action is basically irrelevant.

Even the Author of the Per Curiam Opinion in Bush v. Gore, Justice Kennedy, Cannot Adequately Defend It

Justice Anthony Kennedy, the unacknowledged author of the per curiam opinion in Bush v. Gore, defends his handiwork more aggressively. According to Kennedy, Bush v. Gore was an especially challenging case analytically, and the Court's opinion would have been better if only there had been more time available.

Justice Kennedy seems to have little company in his assessment, even among the Justices who signed onto the per curiam. It is now widely reported that, within the Court, Chief Justice William Rehnquist and Justices Scalia and Clarence Thomas never agreed with Justice Kennedy's equal protection theory for reversing the Florida Supreme Court; they only signed onto the Kennedy-authored per curiam to make sure that Bush won the case.

Hindsight has not treated Kennedy's view any more kindly. Those relatively few academics who have tried to defend the result in Bush v. Gore have done so by abandoning the reasoning in Kennedy's per curiam in favor of other theories.

Even Bush's own lawyers had no confidence in the theory Kennedy used. Their briefs included the equal protection argument basically as a "Hail Mary" alternative in case their other arguments failed.

This analytic failure can't be excused as a mere matter of timing. To be sure, timing could excuse an opinion that was inartfully written or perhaps somewhat incomplete in its reasoning.

But if the Kennedy's entire equal protection approach is simply unsound - as the overwhelming majority of commentators have agreed -- then the short time frame cannot justify what the Court did.

Bush v. Gore Remains a Blight on the Court

In constitutional decisionmaking, the results are supposed to follow from the reasons - not the other way around. If the rationale for Bush v. Gore is irredeemably flawed, then the Court had no business reaching the result it did. And Kennedy's remarks only heighten the suspicions of many that the Court's conservatives decided they wanted George Bush to win the presidency and jerry-rigged a decision to achieve that political - rather than legal -- objective.

I recognize, of course, that nothing the justices could say would satisfy those of us who still see Bush v. Gore as a terrible blight on the Court. But in this circumstance, the justices' highly defensive and unconvincing public comments have only poured salt in the wound.

Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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