Against the law

Two new books make it clear that the Supreme Court's notorious Bush vs. Gore ruling wasn't as bad as it seemed at the time. It was worse.

Published July 5, 2001 12:35AM (EDT)

The Supreme Court's ruling in Bush vs. Gore, which stopped the Florida recount and handed the presidency to George W. Bush, was one of most controversial rulings in the court's history. It inspired an unprecedented flood of outrage: In print and in conversation, in chat rooms and classrooms, law professors, journalists and ordinary citizens alike expressed shock, disbelief and deep anger at the decision. As one might expect, the reaction to the ruling tended (though by no means absolutely) to break down along partisan lines, but there was a notable asymmetry: Outside the noisy precincts of braying-head TV commentators, the court's supporters were considerably less outspoken -- and assured -- than its critics.

The implicit reasoning of those who backed the decision seemed to be "It wasn't pretty, but it had to be done" -- not a position easy to defend publicly. (And since the outcome was both favorable to their side and irreversible, arguments were unnecessary anyway.) The critics, for their part, were convinced that the nation's highest judicial body, whose members are answerable to no one, had pulled off a judicial coup d'état, its conservative majority, on the thinnest of legal pretexts, arrogantly handing the election to the candidate it preferred -- in the process possibly nullifying the votes of 50 million Americans.

I was among those who harshly criticized the Supreme Court's decision. I have had no reason to reconsider that judgment. But, I suspect, like many people who followed the election carefully but are neither lawyers nor experts in the history of the court and constitutional law, I still harbored a small area of doubt as to whether the majority justices were really corrupt.

There were three reasons for this. First, there's decorum: our belief in the incorruptibility of the Supreme Court justices, or at least our hesitation to publicly question it, is deeply ingrained. Second, there is the intimidating universe of law, a kind of parallel reality made up of a confusing maze of principles and codes. Although I believe judicial decisions are ultimately transparent, susceptible to the same analysis as legislation or executive rulings (they must be, or democracy and citizenship are trumped by "expertise"), it's hard for even a reasonably well-informed citizen to feel absolutely confident when making judgments about legal matters. Without knowing the intricacies of the history of equal protection doctrine or how much weight to attach to precedent and consistency in evaluating the probity of a justice's decisions, could one be absolutely positive that the majority's decision was legally and morally bankrupt? Finally, there was the distorting element of partisan passion. In the immediate aftermath of the decision, with emotions running high, judgments could be unreliable.

More than half a year has now passed since Bush vs. Gore. Passions have cooled, and the first wave of expert commentary on the decision, represented by the two books discussed here, has appeared. And there is nothing in either of these volumes to dispel the thesis that the majority acted improperly, and probably corruptly, in Bush vs. Gore.

The 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."

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.

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.

For instance, in a discussion of Antonin Scalia's judicial philosophy in a chapter titled "The Inconsistency of the Majority Justices with Their Previously Expressed Views," he writes that Scalia has hammered away again and again on the theme of precedents, judicial consistency, predictability and "unbroken national traditions," then notes, "In joining the majority opinion in Bush v. Gore, Antonin Scalia violated every single one of these salutary principles to enable him to vote his political preferences. Not only did he violate these rules, but he did so specifically in order to avoid their intended prophylactic effect."

The this-case-only limiting provision of the ruling is the most glaring violation of this dictum. After dismissing the argument itself (he notes that election cases are no more complex than death penalty ones, affirmative action cases and others), Dershowitz argues that it is precisely this type of "unique" case that Scalia, who decries judicial caprice and once wrote "The Supreme Court of the United States does not sit to announce 'unique' dispositions," would normally avoid.

Still worse, he convincingly argues, is the incompatibility between Scalia's expansive finding of equal rights violations in Florida and all of his previous rulings on equal rights. "Scalia has repeatedly said that his job is not to 'revise' the equal-protection clause, nor to 'prescribe' on his own authority 'progressively higher degrees' of equality. The equal-protection clause, in his view, cannot 'supersede ... those constant and unbroken national traditions that embody the people's understanding of ambiguous constitutional texts' ... The Florida standard for hand-counting votes -- the clear intent of the voter -- fits precisely into Scalia's criteria for a law or practice that should not be struck down: It is not expressly prohibited by the text of the Constitution, it bears the endorsement of many states over a long period of time, and it has never previously been challenged. Yet Scalia voted to strike it down, despite his previous strong view that there is no basis for striking down such a standard."

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.

By Gary Kamiya

Gary Kamiya is a Salon contributing writer.

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