Now the books are coming out about the election....................two books offer a reasonably comprehensive spectrum of viewpoints. Alan Dershowitz's "Supreme Injustice" is a lucid, heavily researched, no-holds-barred assault, written for a general audience, on both the ruling itself and on the justices who made it. Dershowitz, an author, Harvard Law School professor and Gore partisan (he provided pro bono legal representation for Democratic voters in Palm Beach County), is out for blood: His purpose is to convince us that the majority not only made bad law in Bush vs. Gore, but did so for contaminated and self-serving reasons. He writes, "The decision may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants ... No honest person can any longer trust them to do justice, as distinguished from politics."
Dershowitz presses his case on three fronts. First, he attacks the legal reasoning of the decision as a matter of law. Second, he examines the various majority justices' previously expressed views, and demonstrates their utter inconsistency with the decision. This is "Supreme Injustice's" most important contribution. Finally, he adduces considerable evidence that supports (though of course it cannot prove) the argument that the justices acted out of blatant partisanship, with some of them also motivated by self-interest.
At the heart of Dershowitz's argument is his certainty that the majority justices would fail what he calls the "shoe-on-the-other-foot test" -- that is, if Gore was ahead and it was Bush who was seeking a hand recount, the majority would have ruled differently. This is an extremely serious accusation, because deciding a case on the basis of the identity of a litigant is a violation of the judicial oath of impartiality. If there were a process to oversee the Supreme Court (and Dershowitz argues that there should be), such a violation would presumably result in the offenders being removed from office. Dershowitz challenges anyone who believes the majority would pass the other-foot test to prove it, "by demonstrating how their opinions in this case can be reconciled with their opinions in prior cases as well as with their extrajudicial writings." Dershowitz concludes that the majority justices "shamed themselves and the Court on which they serve, and ... defiled their places in history." |
