Scott Turow on Legal Realism
washingtonpost.com
A Brand New Game
By Scott Turow
Sunday, December 17, 2000; Page B01
When two candidates are separated by less than one ten-thousandth of the votes cast, resolution of the most minute ambiguities in the rules is likely to determine the outcome--as in fact it did in Florida. Yet despite the 24-hour-a-day analysis of the legal events as they were unfolding, the real costs to our legal system seem to have been lost in the shock of events. The wheels fell off.
Our courts, supposedly neutral institutions, lost their ability to function neutrally in the election free-for-all. In the end, even the U.S. Supreme Court jumped into the partisan fray. Surrendering neutrality will have long-lasting effects on the way the law--and judges--function. It is liable to leave a legacy of more openly political decision-making in our courts and make them less likely to fulfill their traditional role.
In some ways, American jurisprudence has been cushioning itself against this development for most of the last century. Despite the day-after denials by Chief Justice William Rehnquist and Justice Clarence Thomas that politics had any impact on the Supreme Court's decision last week, it has long been acknowledged that judges' political prejudices--both liberal and conservative--shape their decision-making. Legal Realism, the dominant school of jurisprudence in the 20th century, recognized that when judges are free to choose, they will fashion rules that mirror their own ideologies.
Given that reality, however, the Legal Realists--Justices Oliver Wendell Holmes, Benjamin Cardozo, Louis Brandeis and others--tried to erect a tradition that minimized the occasions when judges could do that. Judicial restraint, deference to legislation and strict adherence to procedural norms were some of the ways Realists sought to restrict judicial decision-making.
Legal Realism has been subject to furious debate, but for most practicing lawyers, it has been the received tradition.
The events in Florida proved how fragile the understanding about the limited role of judges could be. In the Sunshine State, partisanship in the legal process was like an infection, escalating as it grew. What resulted was a nasty series of begats: The excesses of Florida Secretary of State Katherine Harris drove the Florida Supreme Court to action, which in turn inspired the U.S. Supreme Court to step well beyond the lines it had long drawn for itself. And as the Realists had anticipated, once judges try to referee on the political battlefield, they become politicians themselves.
The path to open partisanship among legal decision-makers, while fresh, is worth reviewing. Harris, also the co-head of Gov. George W. Bush's Florida campaign, was empowered under Florida law to interpret state election code. She was called upon in this role when the Democrats demanded hand recounts in four predominantly Democratic counties after Bush's lead fell to a scant 327 votes once the automatic recount was completed on Nov. 9. Some of the decisions Harris made or endorsed, like adherence to the Nov. 14 date for counties to certify returns, had clear support in the statutes. Others, like the advice she gave to the counties that manual recounts could only take place to rectify machine errors, flew in the face of the plain language of the law. Taken together, though, Harris's actions were increasingly open to question because each had the effect of preventing the manual recounts, which the Bush campaign by then was trying to stop in federal court.
Even at that stage, the contestants on both sides were clearly counting on making allies of the courts, focusing on the venues where their party's appointees dominated. Bush went to federal court because it was the more certain path to Washington and the U.S. Supreme Court, while Vice President Gore chose the state route, counting on the Florida Supreme Court, which had a history of conflict with the Republican legislature, to stop Harris.
Watching raptly from the sideline, I felt sure that the Realist tradition would somehow prevent either of the courts from acting in ways that could be perceived as political. But when a circuit court judge in Tallahassee ruled that Harris had the discretion to ignore the hand counts in the final totals, the Florida high court was forced front and center. Should it have deferred to Harris, the politician chosen by Floridians to make these decisions? Many Legal Realists undoubtedly would say yes. But it is also a matter of fundamental fairness that an arbiter cannot have a stake in the outcome, and Harris's role in the Bush campaign was also well beyond the norm for an impartial interpreter of the law. In the end, the Florida Supreme Court unanimously overruled Harris and extended the deadline for the hand counts by five days.
Constitutional scholars of all stripes had predicted that the U.S. Supreme Court would follow the Legal Realist tradition of restraint and avoid politicizing itself by allowing the Florida high court to make the final decision about state law. They were wrong. The court in Washington accepted the case, and then, after looking over the precipice, wisely withdrew, vacating the Florida decision and asking that court to muse on various constitutional principles. But the remand carried a clear warning that the U.S. high court would not be so reluctant next time.
"Next time" unfortunately arrived on Dec. 8, when the Florida Supreme Court decided Gore's contest action aimed at forcing a hand count of undervotes. The dilemma faced by the Florida court was the institutional imperative against mixing in politics versus what six of the court's justices ultimately viewed as a clear error made by the trial judge, N. Sanders Sauls, in interpreting the law. The Florida high court decided 4 to 3 to order a count of undervotes throughout the state. Then, last weekend, the five conservative justices of U.S. Supreme Court answered Bush's call to arms.
I have no doubt that the U.S. Supreme Court's conservative majority viewed the Florida court as grossly partisan and deserving of a vigorous response, especially in light of the U.S. high court's moderation the first time. But in this dizzying tit-for-tat, the U.S. court's actions were probably the most wholly at odds with its own traditions, which are of special importance because that court, lacking any supervision, is the institution most vulnerable to charges of arrogance and abuse. I see little chance that history will not apply that judgment to the court's actions.
The court's decision a week ago to stay the hand count of undervote ballots was the most overtly politicized action by a court that I have seen in 22 years of practicing law. It was an act of judicial lawlessness that effectively terminated Gore's chance to win the presidency. It deviated so far from governing legal principles that Terrance Sandalow, a conservative legal scholar and former dean of the University of Michigan Law School, was quoted calling the decision "incomprehensible" and "an unmistakably partisan decision without any foundation in law." The court ignored the lower federal courts, which had four times rejected similar stay requests from the Bush campaign, because it could not prove that Bush would be irreparably harmed by the recounts.
Yet, Justice Antonin Scalia declared in support of the stay, "The counting of votes that are of questionable legality . . . threaten[s] irreparable harm . . . by casting a cloud upon what [Bush] claims to be the legitimacy of his election." Scalia's logic eludes me. The court itself could--and did--repair any harm by calling Bush the legitimate winner in its eventual decision. Far more important, the harm that Scalia identified--a belief that Bush did not actually win--is clearly protected by the First Amendment, which guarantees the right of Americans to think freely, especially about political questions.
By comparison, the court's oblique 5 to 4 decision last Tuesday night was more appropriate. Adhering to a more traditional role, the majority found the recount unconstitutional, mostly because there was no guidance as to what the Florida legislature meant in requiring ballot counters to discern, as the law requires, "the clear intent of the voter." But in accepting the "clear intent" argument, the court gave credence to a point it had deemed unworthy of consideration the first time Bush presented it. More important, the decision seemed the work of an angry combatant. The five justices of the majority refused to say that the Florida high court (rather than the legislature) ever had the authority to define "intent of the voter." By doing so, they prevented any eleventh-hour effort by that court to restart the recount.
And in the end, the majority emphasized that "our consideration is limited to the present circumstances." They were, in other words, not defining legal principles that could govern future disputes. Instead, they were simply deciding the election--and on the galling basis that there was not time enough to count correctly, despite the fact that it was the court itself that had held the ball while the clock ran out.
Even worse, perhaps, the court was unable to articulate any neutral principle that seems to justify Bush's victory--and that could be accepted by both sides. There was no "one man, one vote"; no "all men are equal"; not even a court declaration that our president-elect got the most votes in Florida. We were left only with, "Time's up." History will regard the past month as nothing but a raw power struggle in which Bush prevailed because he had more allies in the right places: in the offices of Florida's secretary of state and governor, in the state legislature, in the U.S. House of Representatives and in the U.S. Supreme Court.
More pressing is the problem posed by the high court's foray into politics. Even the much-maligned Warren Court never came close to picking a president. As the Legal Realists knew, such actions diminish courts, because they were not chosen for the job. I doubt the Bush v. Gore decision will seriously erode the authority of the court with average Americans. But its impact on those who live the law--lawyers and legislators--is likely to be far-reaching. Essentially, the Legal Realist compact has been shattered: We have been told that in the face of perceived political favoritism, neutral process and recognized boundaries for judicial action can properly give way to a decidedly political response.
Finally, the fiery logic of partisanship seems likely to continue in our courts. Lower courts, especially those inclined to decide in ways they believe the Supreme Court will favor, will be tempted to make decisions with a more openly political flavor. That means that we can expect reprisals whenever and wherever Democrats have their hands on the levers of judicial power. Unless there is sustained outcry from the legal profession calling for restoration of the boundaries we have known for a century, the reliability of our courts will remain uncertain for a long time to come.
Scott Turow is an attorney in Chicago and the author of several novels, including "Presumed Innocent" and "Personal Injuries" (Farrar Straus & Giroux).
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