Posner v. Dershowitz
July 15, 2001
From The New York Times
By Ethan Bronner
Who can forget the scene of disarray outside
the United States Supreme Court on the
night of Dec. 12? Dozens of television lights and
cameras were trained on the court's dark plaza as
journalists and lawyers, fighting a stiff wind, flipped
through the 65-page, six-opinion decision of Bush
v. Gore, seeking the fate of the 2000 presidential
election.
Was the vote 7 to 2 or 5 to 4? Was the case
remanded to Florida? It soon became clear that the
Supreme Court, the one branch of government with
no explicit constitutional role in elections, had
selected the nation's next president. It had done so
using an entirely novel and, for the five majority
justices, entirely uncharacteristic equal protection
argument from the 14th Amendment. And, contrary
to the widely accepted role of such decisions, this
one had no precedential value. The majority justices
claimed to have sliced the nation's Gordian knot of
a succession crisis. We were expected to be
grateful.
There is no doubt that many Americans were
relieved that the court had put the country out of its
36-day misery. Most appear to have accepted the
decision and the president. A January Gallup poll
found that a majority viewed the Supreme Court
with the same high measure of esteem as before.
But those who make their living studying the court
were generally shocked. Many have, in effect,
remained on the harshly lighted court plaza, probing
the decision, sifting through the constitutional chaos,
assessing the damage they feel the court has
brought on itself and the nation.
These books, by two of the country's most
productive legal minds, are among the first
full-length treatments of Bush v. Gore. A slew of
law journal articles and collections of essays are
also just out or due out shortly (including the
balanced and thoughtful collection ''The Vote: Bush,
Gore and the Supreme Court,'' edited by Cass R.
Sunstein and Richard A. Epstein, to be published
by the University of Chicago Press in October and currently available as an e-book
on the Web site www.thevotebook.com).
The overwhelming scholarly assessment is that the ruling in Bush v. Gore is a poor
model of judicial reasoning. It is unsteadily grounded and hard to square with the
justices' previous decisions, and it reduces confidence in the court. Most analysts
simply find it impossible to swallow the idea of Justices Rehnquist, Scalia,
O'Connor, Kennedy and Thomas, who have spent years fighting the liberal
expansion of the equal protection clause, seizing upon it as a basis for stopping a
voter recount. But on the decision's overall legitimacy and appropriateness,
commentators are divided. Not evenly divided, to be sure, given the liberal bent of
the legal academy, but the split is deep and troubling. It is well represented by these
two books.+
Tocqueville commented more than a century and a half ago that ''the president may slip without the state suffering'' and ''Congress may slip without the Union perishing,'' because the voters can replace both. But justices are appointed for life, he noted, and ''if ever the Supreme Court came to be composed of rash or corrupt men, the confederation would be threatened by anarchy or civil war.''
In ''Supreme Injustice,'' Alan M. Dershowitz charges that the court majority is, in
fact, corrupt. Dershowitz, of course, has not built a reputation for understatement.
And he played a role in this case, representing several thousand Palm Beach
residents who inadvertently voted for Patrick Buchanan instead of Al Gore on the
confusing ''butterfly ballot.'' But here Dershowitz speaks for a large number of his
colleagues, most of whom believe the court should have stayed out of this case and
let the process take its course. Dershowitz goes so far as to place Bush v. Gore in a
category beyond the court's most famous self-inflicted wounds: the Dred Scott
decision, which in effect called black Americans property, and Plessy v. Ferguson,
which legitimized segregation as ''separate but equal.'' At least in those cases,
Dershowitz says, the justices were acting consistently with their own warped judicial
philosophies. But here, he charges, the majority acted out of personal political
preference, and therefore Bush v. Gore ''may be ranked as the single most corrupt
decision in Supreme Court history.'' (That statement, it should be pointed out, is mild
compared with the view of Vincent Bugliosi, a former Los Angeles deputy district
attorney. In an article in The Nation that he has padded out into a book titled ''The
Betrayal of America: How the Supreme Court Undermined the Constitution and
Chose Our President,'' published by Thunder's Mouth Press, he calls the justices in
the majority ''criminals in the very truest sense of the word.'' On comments by
Clarence Thomas and William Rehnquist that politics played no part, he writes,
''Well, at least we know they can lie as well as they can steal.'')
Richard A. Posner, a federal judge on the Court of Appeals for the Seventh Circuit,
a senior lecturer at the University of Chicago Law School and the author of an
extraordinary array of books on law and society, has written a powerful defense of
the ruling in ''Breaking the Deadlock,'' to be published in September and available
this month as an e-book at Barnesandnoble.com and Amazon.com. Posner
concedes that more Floridians probably meant to vote for Al Gore than for George
W. Bush. He also concedes that the equal protection basis for the Supreme Court
ruling was faulty (although he contends a better one was available). Yet he says the
court ruled appropriately and honorably. It acted in the tradition of constitutional
pragmatism, averting a looming national crisis that would have resulted from the
dispute ending up in Congress, where partisan forces would most likely have run
wild. On balance, Posner says, Bush v. Gore was therefore ''a rather good''
decision.
That two such nimble and serious legal thinkers as Dershowitz and Posner can arrive
at such opposing conclusions speaks to the distressingly subjective nature of the law.
Some 50 court cases resulted from the Florida electoral tie, and every single one of
the rulings is open to legitimate competing interpretation. Since the law is supposed
to serve as an anchor under shifting political seas, this can be disconcerting to
contemplate. It is especially upsetting in this case because if Gore had held the lead
and Bush had sought the recount, it seems most unlikely that the justices and
scholars would have taken the same positions. As Frank Michelman of Harvard
Law School puts it in his contribution to the Sunstein-Epstein collection, one's view
in this case seems to depend on whose Gore was getting oxed.
To get a taste of the elasticity of judicial reasoning, it is helpful to venture, at least
briefly, into the legal thicket that grew out of two conflicting Florida laws. One
requires that when an election result is in doubt as a result of tabulation error, there
be a hand recount (a long, laborious and subjective process); the other says that
final results must be delivered within a week of Election Day. Florida's secretary of
state, Katherine Harris, focused on the deadline (convenient since Bush was ahead
and she had been active in Bush's campaign). The Florida Supreme Court extended
the counting deadline (convenient since six of the seven justices there were
appointed by Democrats). It said that to stop the counting violated the
''pre-eminent'' right to vote found in the state's constitution and that Harris was
engaged in ''hypertechnical reliance upon statutory provisions.''+
The Florida court's action doesn't seem strange on its face. That is what state courts
do -- interpret and reconcile statutes based on things like the state constitution. But
Posner says the Florida court was woefully overreaching. The law permits a full
hand recount if there is ''an error in the vote tabulation which could affect the
outcome of the election.'' (It also says that if the recounting goes beyond the seventh
day, its results ''may be ignored'' by the secretary of state.) Posner says the Florida
court and its defenders have confused tabulation error with voter error. Voters must
fully punch through their ballot cards. If they fail to do so, the machines are
programmed not to count them. That is what happened in Florida; no law was
broken. As Posner puts it, ''If you put a steel bar into a meat grinder and hamburger
meat doesn't come out, do you call this an error by the meat grinder?'' He says the
Gore mantra of ''count all the votes'' was meaningless. All the ballots were counted,
that is, tabulated twice by machine. Those ballots that had been spoiled by the
voters, generally through failure to punch the hole through, were appropriately
rejected. Once you allow such votes to be hand-counted, Posner says, you open
the process up to unbearable subjectivity (hanging chads, dimpled chads). The
Supreme Court rightly stepped in to correct the Florida court's errors.
Agree or not, for devotees of public policy there are few pleasures as keen as
reading Richard Posner. He is clever, original and tough-minded. For example, he
dismisses those who argue that Bush's legitimacy is harmed by Gore's victory in the
popular vote by comparing the election to a tennis match: if a player wins more sets
while his opponent wins more games, no one disputes the outcome. Posner, a leader
in the law and economics movement, is unsentimental about the nation's governing
system: ''American democracy,'' he writes, ''is structured, formal, practical, realistic
and both supportive of and supported by commercial values. It is not starry-eyed,
carnivalesque or insurrectionary. It is not pure or participatory democracy, and it
does not consider political chaos a price worth paying to actualize the popular will.''
His book is worth the price of admission just to watch him spin out a scenario
whereby Lawrence Summers, then secretary of the treasury, would have become
acting president -- and America's first Jewish president -- if the Supreme Court had
not stepped in.
DERSHOWITZ is at his best in his exposure of how Bush v. Gore is inconsistent
with previous decisions of the majority justices. With ease, he hoists them by their
own petards. Antonin Scalia, for instance, wrote in a 1996 case: ''The Supreme
Court of the United States does not sit to announce 'unique' dispositions. Its
principal function is to establish precedent -- that is, to set forth principles of law that
every court in America must follow.'' Yet this case was limited to the present
circumstances.
But for John Yoo, a Berkeley law professor who contributed to the
Sunstein-Epstein collection, the limited nature of the decision actually increases its
legitimacy. He contrasts Bush v. Gore with Roe v. Wade, the 1973 abortion
decision that he and many other lawyers consider poorly grounded, saying that Roe
has kept the court in the center of political controversy for years, whereas Bush will
not.
Whenever judges hand down far-reaching decisions, supporters applaud their
courage while dissenters warn of the dangers of raw judicial power. In the 1930's,
the left was livid at the Supreme Court's obstruction of the New Deal. In the 60's
and 70's, the right was horrified at the court's expansion of the rights of privacy
(read ''women''), minority groups and criminal defendants. Now, with the courts
again solidly in the hands of conservatives, the argument is shifting again. Dershowitz
ends his book with a lament that liberals had foolishly considered the judicial system
''ours'' and had brought conservative judicial activism on themselves by promoting
liberal judicial activism. In other words, Bush v. Gore is the payback for Roe v.
Wade. The time has come, he warns, without apparent irony, to depoliticize the
judiciary and seek nominees who are great rather than politically reliable. The
problem, of course, is that legal greatness often shifts with the political context. Bush
v. Gore simply unmasked the context in an unsettlingly partisan fashion.
Ethan Bronner, education editor of The Times, covered the Supreme Court for The Boston Globe from 1986 to 1991 and is the author of ''Battle for Justice: How the Bork Nomination Shook America.''
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