and, more.............According to Dershowitz, Scalia violated his judicial philosophy because wanted to make sure his boy got in. He succeeded, but -- Dershowitz argues -- at the cost of his honor and his reputation: "Had he passed the test posed by this case, history might well have remembered him as the man of principle he claims to be. But he failed the test, and failed it badly ... Scalia's vote in Bush v. Gore has shown that the most accurate guide to predicting his judicial decisions is to follow his political and personal preferences rather than his lofty rhetoric about judicial restraint, originalism, and other abstract aspects of his so-called constraining judicial philosophy, which turns out to be little more than a cover for his politics and his desire to pack the Court with like-minded justices."
After this, it must give Scalia little joy to read that "Because I like Justice Scalia as a person, I was most disappointed with his precipitous abandonment of principle in the name of partisanship."
If Dershowitz regards Scalia more with sadness than with anger, the other majority justices fare even worse. He is caustically dismissive of both Rehnquist and Thomas, whom he basically describes as, respectively, a partisan hack and an enraged, withdrawn, semi-competent partisan hack. "I was neither surprised nor disappointed by the actions of Chief Justice Rehnquist," he writes. "No one I know seriously considered the possibility that Rehnquist had an open mind in this case." The same holds true for Thomas, whom Dershowitz describes as a Limbaugh-listening reactionary who sometimes doesn't even remove the rubber band from his stack of briefs and is consumed by hatred of his enemies, including Al Gore.
Finally, there are the two "moderates," Kennedy and O'Connor. Dershowitz blasts O'Connor for departing from her federalist principles in Bush vs. Gore, notes her stated desire to retire under a Republican president and strongly suggests that her judicial vote was influenced by partisan and/or personal motives. "[O'Connor] has recently acknowledged to a friend that her vote in the election case may have hurt her reputation and endangered her place in history," he writes. "She is right." He criticizes Kennedy for abandoning long-held judicial beliefs on equal protection, the role of precedent, stay applications and the proper role of courts in politically charged cases, and speculates that Kennedy -- who he says wrote the court's final per curiam opinion -- was trying to position himself to become chief justice when Rehnquist retires.
Defenders of the court find reasons to argue with all of the above critiques -- although I believe that they would have to perform feats of casuistry unseen since the days when Ignatius Loyola strode the earth to do so. But from a rigorously nonpartisan point of view, perhaps the single most glaring problem with the decision is the court's failure to allow Florida to hold a recount under uniform standards.
Even assuming that the high court was right to get involved in a murky issue of state election law in the first place; even assuming that it was wise for justices with an inescapably personal interest in the outcome to jump into a highly political dispute; even assuming that the issuance of the stay, which stopped the recount, really did prevent Bush from suffering the "irreparable harm" of a "cloud" over the "legitimacy of his election"; even assuming there was some way to reconcile the majority's suddenly activist stance with all of its previous views about state sovereignty; even assuming that there was also some way to reconcile the majority's highly tactical, avowedly one-time-only intervention with its members' previous views about fidelity to precedent and the necessity of basing decisions on broad judicial principle; even assuming that the Supreme Court was correct in its adventurous (and again unprecedented) finding that Florida's vote-counting standard was unconstitutionally broad; even assuming that this standard was a greater equal-protection violation than the existence of completely different voting systems throughout the state -- even assuming all this, why didn't the court simply remand the case back to the Florida court and ask it to come up with a universal standard for counting votes?
The court argued, in effect, that time had expired. But the "safe harbor" argument it put forward -- that the Dec. 18 deadline, after which state electors could be challenged, was absolute -- has been shown to be fallacious. (As David Strauss notes in "Bush v. Gore: What Were They Thinking?": "This interpretation of 3 USC section 5 [the constitutional section concerning the "safe harbor" deadline] is wrong. No one, now, believes otherwise.") As the conservative scholar Michael McConnell writes in his contribution to "The Vote," "Two-and-a-Half Cheers for Bush v. Gore," "Having rested the decision on the standardless character of the recount ordered by the state court, the logical outcome was to remand under proper constitutional standards." And he admits that the court's failure to do so "continues to cast long shadows both on the Court and on the Bush presidency."
McConnell does not venture to speculate what those "long shadows" might be. But surely it is reasonable to conclude, given the totality of the record, that the Supreme Court failed to remand because it did not actually want a recount under any circumstances -- and it did not want one because a fair recount might give the election to Gore.
If the majority did not want even a fair recount, there is only one possible justification that could be offered for its action: It was acting to prevent a national crisis that could have erupted had Gore prevailed and two sets of Florida electors appeared before a divided Congress. This is the argument made by Richard Posner, a conservative legal scholar and judge. "What exactly is the Supreme Court good for if it refuses to examine a likely constitutional error that, if uncorrected, will engender a national crisis?" he wrote. In his new book "Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts," Posner asserts that pragmatism -- in this case, the desire to head off a crisis -- was the "hidden ground" not just of Bush vs. Gore but of many judicial decisions.
Dershowitz and Posner clash on this issue of a paternalistic Supreme Court using deception to "save" the country in a contentious exchange in Slate. Posner argues that courts that Dershowitz likes, such as the Warren Court, have frequently been disingenuous about their rulings: Dershowitz fires back that he never defended that aspect of the Warren Court and that there is no place in a democracy for secrecy. Posner's position, a variant of the de-idealizing doctrine of legal realism, has a core of truth as regards jurisprudence in general, but it's dubious whether it applies to Bush vs. Gore.
Returning to the question of the recount, there is one other possible explanation for why the Supreme Court majority did not want one: because it was convinced that a corrupt Florida Supreme Court would put its thumb on the scales and give the election to Gore. To be sure, this motivation and the "national crisis" motivation are not mutually exclusive. And there is reason to believe that elements of both were present in the majority's thinking. Dershowitz writes, "I have been told that one of the dissenting U.S. Supreme Court justices characterized the mind-set of some of the majority justices as follows: 'If the Florida Supreme Court is going to act like a bunch of Democratic political hacks, well, by God, we will act like a bunch of Republican political hacks.'"
Leaving aside the well-known, if apparently no longer unquestioned, dictum that two wrongs don't make a right, is there compelling evidence that the Florida court was in fact in Gore's pocket? David Strauss reminds us that, in fact, the Florida Supreme Court issued a number of important rulings that went against Gore, including rejecting his attempt to require Miami-Dade County to resume its halted recount. As Strauss points out, "At the time it seemed entirely possible, indeed perhaps probable, that the Florida Supreme Court's decision on this issue cost the Vice President the election."
Taking this into account, Strauss argues convincingly that "several members of the Court -- perhaps a majority -- were determined to overturn any ruling of the Florida Supreme Court that was favorable to Vice President Gore, at least if that ruling significantly enhanced the Vice President's chances of winning the election. They acted on the basis of strong intuitions -- which ... is by no means necessarily inappropriate in itself -- but the intuitions were intuitions about the outcome, not about the law." The court "was not prompted by a reasoned judgment that the Florida Supreme Court made specific legal errors," but a "general sense that the Florida Supreme Court was illegitimately manipulating the law to ensure that Vice President Gore won." And that "general sense" was unjustified by the observable facts. (Dershowitz, in a telling aside, sheds light on why the U.S. Supreme Court may have had that "intuition," noting snidely that "some of the justices ... apparently got their facts more from CNN than from the evidentiary record in the case.")
We are now in a position to consider the central questions raised by Dershowitz. First, would the majority pass the other-shoe test -- that is, would it would have ruled as it did if it had been Bush who wanted the recount? Second, if it would not, does that by itself prove its corruption?
Dershowitz believes it does. He throws down the gauntlet to academic defenders of the decision. "I believe it is morally wrong for scholars to defend the majority justices, even if they think their arguments are theoretically defensible, unless they honestly believe that the justices themselves would have offered these arguments on behalf of Gore if the shoe had been on the other foot," he writes. "For brilliant academics, clever arguments are easy to come by. But to publicly defend an argument that was presented only as a rationalization for a decision based on partisan political grounds rather than nonpartisan legal grounds, is to become complicit in an intellectual fraud perpetrated by the Supreme Court majority on the nation, and to encourage its emulation in future cases." He goes on to challenge those who honestly believe that the majority would have passed the impartiality test to support their belief by citing opinions and other evidence.
I asked "The Vote" co-editor Cass Sunstein, a moderate liberal who in his piece offers qualified praise for certain aspects of the decision, whether he believed that the majority would pass the test. "I think it's unlikely in the extreme that the majority would have made the same arguments if Gore had been ahead and Bush had been asking for a recount," he replied. "I say this with sadness."
I said that Dershowitz argued that on the face of it, failing the other-shoe test means a justice has made a corrupt ruling. Did Sunstein agree? "I wouldn't go as far as Dershowitz in saying that the majority, by their ruling, violated their judicial oath of impartiality," he said. "I think they thought that something had gone very wrong in Florida and had to be corrected. It wasn't purely partisan, the simple desire to put Bush in office."
Still, he added, "the decision is very troubling. I think perhaps they acted lawlessly. But I guess I feel that it's good to give these people the presumption of good faith. They saw the events in Florida through their own lens; they saw the problem and acted by their lights. A number of them clearly thought that the Florida Supreme Court wasn't playing it straight."
Sunstein's comments throw into sharp relief a key question about judicial ethics. Does the fact that a justice "sees things through his own lens" excuse him or her from charges of violating the judicial oath of impartiality? On the face of it, it would not seem to. After all, a lens can be distorted. Even criminals see things through their own self-serving lens.
In any case, the Supreme Court -- Posner notwithstanding -- is not a body that should engage in covert, outcome-driven, political actions, even if its "lens" shows it a monstrous Democratic menace rising up off the coast of Florida like Godzilla. In "Bush v. Gore: What Were They Thinking?" David Strauss argues that the most reasonable defense for the court's ruling is that they were convinced the Florida Supreme Court would try to steal the election for Gore, that no reasonable use of law would allow them to stop the Florida court, and that they therefore engaged in "a kind of morally justified civil disobedience." He concludes, "This was not a triumph for the rule of law." Strauss is right.
Was it also evidence of corruption? On the whole, I think the evidence points to an answer of "yes." I think the majority would not have passed the other-shoe test. And I agree with Dershowitz that that fact alone is damning.
There is an element of power and, perhaps inevitably, self-interest in all judicial decisions. As Sunstein remarked, "We've tended to have too idealized a view of the court." But the idea that justice must be blind, that the most powerful court in the world -- and arguably the most powerful institution in the country -- must not sink into brazen partisanship, is a bedrock principle. We must stand by it, and those justices who violate it must be held accountable. By failing to live up to their judicial oath, by allowing political motivations to sway them, by besmirching democracy itself, the five members of the Supreme Court majority disgraced themselves forever. From history's judgment, there will be no appeal.
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