more............Sunstein and Epstein's "The Vote" is a quieter book, less fiery and focused but with greater intellectual range. A collection of essays by legal scholars, it's aimed at a narrower, more expert audience than Dershowitz's book. And unlike "Supreme Injustice," it presents both sides: Its contributors include a number of eminent conservatives.
What's noteworthy about "The Vote" is how weak, cramped and unconvincing the arguments made by the majority's defenders are: Not a single writer finds himself able to defend the ruling in its entirety, and some of the concessions they make are huge. (The fact that none even addresses the "shoe on the other foot" test is telling.) As for the majority's critics, they make many of the same legal points that Dershowitz does, as well as adding a few he misses, and they also delve fruitfully into broader areas of interpretation.
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Also Today
Vincent Bugliosi's "The Betrayal of America"
Why have Democrats responded so feebly to the Supreme Court's highway robbery?
By Charles Taylor
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Supreme Injustice: How the High Court Highjacked Election 2000
By Alan M. Dershowitz
Oxford University Press
275 pages
Nonfiction
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The Vote: Bush, Gore and the Supreme Court
Cass R. Sunstein and Richard A. Epstein, eds.
Forthcoming from University of Chicago Press
Nonfiction
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Three essays are particularly stimulating: Richard H. Pildes' "Democracy and Disorder" relates the court's fearful attitude toward democracy to its ruling in Bush vs. Gore; David A. Strauss' "Bush v. Gore: What Were They Thinking?" attempts to capture the mindset of the majority; and Frank I. Michelman's "Suspicion, or the New Prince" casts a critical eye upon what he argues is the court's chosen role as a Machiavellian Regent, a kind of national savior making the "right" decisions for the country, which for reasons of efficacy dare not speak their name.
Unlike Dershowitz, the pieces in "The Vote" don't call for the justices' heads, and they don't venture into the unseemly realm of the ad hominem. But a stiletto can be just as deadly as a broadsword, and their academic judiciousness makes them, in some ways, even more rhetorically damning than the polemical "Supreme Injustice." (For those who really crave red meat, Vincent Bugliosi's "The Betrayal of America" is prime porterhouse. Bugliosi asserts that the majority justices are common criminals.)
There is something viscerally satisfying about the experience of reading both books. The painful truth is that, except for those in a position to sit in judgment on Bush's judicial appointments, there is no practical response short of civil disobedience to a misdeed committed by the Supreme Court. The condemnation of history is the only satisfaction Americans who were outraged by the decision will ever get. And that condemnation has begun.
Before turning to the central question raised by Dershowitz -- whether the majority's action was truly corrupt, rather than just shaky law (as even many of the majority's defenders admit) -- let us review the arguments against the decision made by Dershowitz and by some of the contributors to "The Vote."
The majority considered two substantive arguments in finding for Bush. The first (which, tellingly, was the only one the court initially gave serious consideration, but which it later rejected), concerned whether the Florida Supreme Court usurped the authority of the Legislature by making new law. The second, the argument that finally prevailed, was that Florida's differing counting standards constituted an equal protection violation under the 14th Amendment.
The equal protection argument runs aground immediately on the simple question of standing: who is harmed? (A question, Dershowitz points out, typically posed by Justice Antonin Scalia in the equal protection cases he has skeptically addressed -- but one which he suddenly lost interest in.) No class of voters is placed at either an advantage or disadvantage by the existence of a general standard ("the clear intent of the voter") that is applied differently in different precincts. As Michelman writes in "Suspicion, or the New Prince," "all that [the court] found legally wrong was that the intent-of-the-voter standard -- they thought unnecessarily -- allows different honest counters, or groups of them, to make different dispositions of identical ballots, on a basis that is utterly random with respect to voter interest. No one's equal dignity is impugned by this practice, and only Humpty Dumpty would describe it as valuing one person's vote over another's. Is this a human rights emergency? I would like you even to put a name to the human right undergoing violation here."
Even worse is the fact that the remedy was far more harmful than the problem. By stopping the recount, the high court clearly denied many thousands of voters who cast legal votes, as defined by established Florida law, their constitutional right to have their votes counted. This is the aspect of the court's ruling that must stick in the craw of even the most partisan Republican, because it profanes the most sacred tenet of democracy. It cannot be a legitimate use of law to disenfranchise legal voters when recourse is available. Dershowitz concludes, "This is the most perverse misuse of the equal protection clause I have seen in my 40 years as a lawyer, especially since the uncounted votes almost certainly were cast disproportionately by precisely those citizens whom the equal-protection clause was originally designed to protect -- racial minorities." He notes that even conservatives who applaud the decision's outcome have found it hard to defend the equal protection principle.
As for the other argument, subscribed to in the end by only three justices (though generally preferred by conservative commentators, who dislike the liberal, anti-federalist implications of the equal protection finding), that the Florida Supreme Court's ruling usurped the constitutional authority of the Legislature as set forth in Article II of the U.S. Constitution, Dershowitz argues that it is even weaker than the equal protection claim. Basically, he echoes the words of Justice John Paul Stevens, in dissent: rather than making new law, the Florida court simply did what courts do -- it resolved an ambiguity in legislation. This is the principle of judicial review, enshrined in one of the canonical Supreme Court decisions, Marbury vs. Madison. The high court's finding that Florida's court had overreached to the point where federal intervention was required was without basis in law. (It was also contrary to the expressed judicial philosophy of the majority, but that goes without saying -- as Dershowitz argues in minute and convincing detail, every single position taken by the majority justices goes against all of their previous positions.) Even if the Florida Supreme Court erred in its interpretation of Florida election law, which Dershowitz and several of the contributors to "The Vote" acknowledge is eminently possible, that would have been insufficient grounds to trigger federal intervention. Error alone is not enough: the Florida court's interpretation would have to be so far afield as to be absurd. In an essay titled "'In Such Manner as the Legislature Thereof May Direct': The Outcome in Bush v. Gore Defended," "The Vote" co-editor Richard A. Epstein mounts what his colleague Cass Sunstein called a "heroic" defense of the Article II argument, but it is less than convincing.
Then there is the decision's much-criticized limiting provision -- the "this train and this train only" coda. The majority wrote, "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." Dershowitz derisively writes, "Like a great spot-relief pitcher in baseball, this equal-protection argument was trotted out to do its singular job of striking out Vice President Gore and was immediately sent to the showers, never again to appear in the game." David Strauss comments, "The Court's attempt to limit its holding, with barely a fig leaf of principle, gives the game away. The majority was not concerned with principle. It smelled a rat in this case. It thought the Florida Supreme Court was up to no good. It could not explain what the Florida Supreme Court was up to in terms that engaged general principles that it was willing to embrace, but it was determined to intervene and stop that court. If the actions of the United States Supreme Court are to be defended, they must be defended in those terms." In his essay, "Order Without Law," Cass R. Sunstein notes that there is no logical reason that the court's ruling should be "limited to the present circumstances," adding, "The effort to cabin the outcome, without a sense of the principle to justify the cabining, gives the opinion an unprincipled cast."
At a more general level, several commentators argue that the court's involvement in such a political case was unwise, if not an explicit conflict of interest. In "Leaving the Decision to Congress," Elizabeth Garrett argues that the court's intervention into the political and electoral sphere harms both the court and the public's image of our elected officials. Michelman, arguing that the court could and should have declined the case (as most experts expected it to do), writes, "It is not as if the Court lacked a proper, honorable alternative to decisive intervention. The majority's woebegone plea to the contrary -- 'when contending parties invoke the process of the courts ... it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront' -- cannot be sincere. Why is certiorari jurisdiction discretionary, then? What is a political question?"
These critiques concern the decision itself. But the heart of Dershowitz's book concerns the shocking inconsistency of that decision with the views previously expressed by the minority. It's widely known that the majority embraced arguments that were not only novel and legally dubious, but out of character for its members. But Dershowitz goes further, citing chapter and verse to reveal just how bizarre it was that individual members of the court ruled as they did. |
