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.
Dear Judge Posner,
You have taken advantage of the fact that you read Supreme Injustice while many of the readers of this exchange did not in order to distort the thrust of my book. You claim that “the feebleness of the decisions is [the] only evidence [I offer], apart from unverifiable anonymous tips and rumors, for the charge of corruption.” I say exactly the opposite, repeatedly, throughout my book. Indeed, from Pages 98 to 110, I argue extensively that even if the opinions were somehow correct as an abstract matter, they would be corrupt if the justices would not have accepted these “correct” arguments had the shoe been on the other foot. In my challenge to “academic defenders” of the majority justices, I postulate the possible correctness of the justices’ arguments and nonetheless maintain “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.” I explicitly state that the weakness of the justices’ arguments provides no more than “probable cause for probing their motives.” The primary evidence I rely on to prove corruption—evidence you willfully ignore—consists of the previous writings of the five justices themselves. In writing this book I have read more than 500 opinions, articles, speeches, and testimony of these justices. In the central chapter of my book, titled “The Inconsistency of the Majority Justices With Their Previously Expressed Views,” I catalog a series of major inconsistencies between what these justices have said in the past and what they did in Bush v. Gore. These are not “tips” or “rumors”; they are the published record of the justices themselves. You do these justices no favor when you suggest that “no sophisticated legal professional takes seriously” the kind of inconsistent passages I quoted by Justices Kennedy and O’Connor. Consider, for example, an argument made dozens of times by Justice Scalia against an ad hoc adjudication and in favor of general rules that not only constrain lower courts but constrain individual justices. As Scalia has put it, “If the next case should have such different facts that my political or policy preferences regarding the outcomes are quite the opposite, I will be unable to indulge those preferences; I have committed myself to the governing principle.” That view is entirely inconsistent with your view of the pragmatist who “regards adjudication, especially constitutional adjudication, as a practical tool of social ordering and believes therefore that the decision that has the better consequences for society is the one to be preferred.” Would you regard anyone who took Scalia’s views seriously as unsophisticated or unprofessional? I’d love to hear Scalia say that.
Unfortunately, the manner by which you have deliberately distorted the entire thrust of my book by totally ignoring its central claim of inconstancy is all too typical of how some appellate judges willfully distort the trial record and the case law in order to achieve the results they believe produce “the better consequences for society.”
As further evidence of your distortion, let us go back to the No. 2 pencil case, which you describe as reflecting “innocent failures to comply with technical requirements of state election law.” You seek to distinguish it from cases in which “the machines are not supposed to record dimpled ballots.” But according to the record in the Beckstrom case, the machines there were also programmed not to record marks made by anything other than a No. 2 pencil. If you favor counting the ballot, you call it an innocent failure, but if you disfavor counting the ballot, you blame it on the voter.
Finally, you seem to acknowledge that I “may be right,” that had the shoe been on the other foot, the conservative justices would not have stopped the recount. You offer several defenses of these justices. First is that they must have acted unconsciously—an insulting assessment that blinks reality in a case as political as this one. Intelligent justices had to know that they were violating every principle they had previously deemed sacrosanct in their writings. Second, you claim that the liberal justices would have been just as bad, as if that would in any way justify what the majority justices have wrought. And third, you invoke justices you say I admire and argue that they have done the same thing. First, my admiration for the Warren Court justices has never extended to their lack of candor. In a democracy, there is never an excuse for a court invoking the Jack Nicholson claim: “You can’t handle the truth.” As you know from reading Supreme Injustice, I have always been a strident critic of Roe v. Wade as well as other opinions of the Warren and Burger courts that lacked candor and fidelity to constitutional principles. But even so, Bush v. Gore is qualitatively different. In none of the cases that you (and I) criticize have the justices violated their own previously expressed principles in order to bring about a partisan—as distinguished from an ideological—result: namely, the election of a preferred presidential candidate. I challenge you—and I hope you will accept this challenge and not divert it as you have my previous challenges—to name a single modern decision of the United States Supreme Court in which the majority justices were as inconsistent with their own prior writings in a case which gives rise to a reasonable suspicion that, either consciously or unconsciously, they preferred a partisan outcome favoring a particular candidate? I believe this is the only case in modern Supreme Court history whose outcome depended on the names and party affiliations of the litigants. I prove this serious charge in Supreme Injustice by marshaling the prior inconsistent writings of these justices. Now it’s your turn to defend or dispute these inconsistencies rather than to attack the straw men you have erected.
