Alan M. Dershowitz is Felix Frankfurter Professor of Law at Harvard Law School and the author of Supreme Injustice: How the High Court Hijacked Election 2000. He recently represented a group of Palm Beach voters who opposed George W. Bush's efforts to stop the recount in that county. Richard A. Posner is a judge of the U.S. Court of Appeals for the 7th Circuit and a senior lecturer at the University of Chicago Law School. He is the author of Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts. This week, they discuss the legal and constitutional issues surrounding the 2000 presidential election.
You and I reach diametrically opposite conclusions about the Supreme Court's decision in Bush v. Gore. You characterize it in your book as "a rather good one," whereas I conclude in my book that it "may be ranked as the single most corrupt decision in Supreme Court history." Despite this profound difference in conclusions, there is a remarkable consistency between the approaches we each take in evaluating the Supreme Court majority. We both conclude that the rationale that formed the basis of the court's decision—that the Florida hand count violated the equal-protection clause—cannot be justified. You are right when you say that for voter discrimination to constitute a violation of the equal-protection law, "it would have to be deliberate," and you concede that "it was not deliberate" here. You also agree that the argument of the three concurring justices (Rehnquist, Scalia, and Thomas)—that the Florida Supreme Court's decision violated Article II of the Constitution, which provides that the state legislature, not the state courts, are authorized to determine the manner by which electors are selected—requires an activist stretch. You acknowledge that these three conservative justices, who generally feel constrained by fidelity to the text and intentions of the framers, gave Article II "a meaning very likely unintended by the Constitution's framers, whom conservative lawyers and judges tend to venerate to the point of idolatry." You also acknowledge that "the decision deals a blow to states' rights by overriding a state supreme court's interpretation of its own state's statute."
The major thesis of your book is that although the decision was legally questionable at best, it can be justified by looking at a secret and hidden agenda that the majority justices must have had in mind: namely, a pragmatic desire to head off a constitutional crisis. You posit "pragmatism as the hidden ground of decision" not only in this case, but in other "notable decisions" of the high court. You acknowledge that "it would have been nice had the majority justices in Bush v. Gore articulated the practical concerns that justified the boldness of their constitutional innovations," but you defend the justices' duplicity by noting that "judges are shy about the pragmatic grounds of their decisions."
I, too, argue that there was a secret and deliberately hidden ground for the majority's decision, namely, the desire to see George W. Bush, the Republican candidate, elected president. You agree with me that "a preference for one presidential candidate over another" would be "exceptionally foolish—and, even to a pragmatist, plainly lawless." You appear to acknowledge that the majority justices may have unconsciously been influenced by their own "undeniable interest" in electing the president who would select "colleagues and successors who share their preferences," but, you "doubt that any of the justices has so debased a conception of the judicial office as to try deliberately to swing the election to his preferred Presidential candidate" (italics yours).
The issue between us is thus squarely met. We both believe that the decision cannot be justified on the grounds set forth in the majority opinion. We both believe that it is proper, indeed necessary, to examine the motives of the justices. We both believe these motives are secret and hidden. We both believe that the five justices may have been unconsciously motivated by a desire to select Bush as president. We both believe that such a desire, if conscious, would be lawless. You believe that the majority justices did not deliberately try to swing the election to Bush. I conclude, after reading hundreds of opinions, articles, and testimonies by these justices, that they did deliberately try to swing the election to Bush.
I now challenge you to respond directly to the central question of my book: Can you look your readers in the eye (virtually if not directly) and assure them that you are completely confident that each of the five majority justices would have voted to stop the hand count had the shoe been on the other foot—had Gore been ahead by a few hundred votes and had Bush needed the hand count to have a chance of winning the election? In Supreme Injustice I present the following heuristic: "Imagine if the one hundred most experienced observers of the high court—academics, Supreme Court litigators, journalists who cover the justices—had been presented, one year before the Florida case, with a hypothetical case based precisely on the facts of the Florida case but without the names or party affiliations of the candidates" and were asked to predict how the majority justices would have voted. I now ask that question of you.
In your book, you seem to imply that the majority justices might fail that test, but you suggest that the minority justices, the Florida Supreme Court justices, and liberal academic critics of the court would also fail the test. Even if that is true, it is not much of a defense of the majority justices. Moreover, you have failed to disclose to your readers the full picture of what the Florida Supreme Court did. You imply that the Florida Supreme Court decided to change "the outcome [of the election] by altering the election rules after the result is known." You imply throughout the book that prior to this election the law in Florida had always been that a hand recount is permissible only to retrieve votes that are a result of "tabulating error," rather than "voter error." You try to persuade your readers that the law in Florida, prior to the 2000 election, was that if "the voter is complicit," if the voter "fails to follow instructions," there can be no recount. (The majority of the Supreme Court made the same assertion in its opinion, and Justice O'Connor emphasized it during oral argument.) But as I demonstrate in Supreme Injustice, and as was fully briefed and argued to the United States Supreme Court, Florida law had long rejected your sharp distinction between voter error and tabulation error. In the leading case, the Florida Supreme Court had ruled that Florida law required counting the ballots of several thousand voters who had committed voter error by not following the clear instruction to "fill in with a no. 2 pencil." These voters had used pens and other kinds of pencils, and the optical scanners could not read their marks. This was the Florida law at the time of the 2000 presidential election, and it is scandalous that the Supreme Court majority failed to discuss this case fully, honestly, and openly. Did they have a secret pragmatic reason for depriving us of this highly relevant piece of information?
Finally, I challenge you to defend the use of secret, hidden reasons by judges in a democracy. Surely Justice Thomas would not agree, for as he once nicely put it: "Arguments should not sneak around in disguise." Nor could Justices O'Connor and Kennedy, who cautioned only eight years earlier: "The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressure having, as such, no bearing on the principled choices that the Court is obliged to make."
It is this kind of blatant inconsistency (and others documented in Supreme Injustice) between what the majority justices have said in the past and what they did in Bush v. Gore that conclusively proves they knew exactly what they were doing: deliberately trying to swing the election to their preferred candidate. What data do you offer to prove that their secret motivation was neutral pragmatism that would pass the shoe-on-the-other-foot test?