Alan M. Dershowitzis 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 ofPalm Beachvoters who opposed George W. Bush’s efforts to stop the recount in that county.Richard A. Posneris a judge of theU.S.Court of Appeals for the 7th Circuit and a senior lecturer at theUniversityofChicago 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 are correct that the gap between us may be narrowing a little, but not in the way you suggest. My silences should not be taken as admissions, any more than your refusals to respond to my challenges should. I stand on what I wrote in Supreme Injustice, not all of which I can repeat here because of word limitations. Let me first respond to your accusation concerning anonymous tips. You specify the one concerning Justice Kennedy changing his vote in a quest to become chief justice. That allegation is far from anonymous. It comes from Robert Novak, a Republican columnist with unimpeachable sources. On Page 162 of Supreme Injustice, I quote two columns in which he made this allegation and even specified the case. You failed to mention that my book has nearly 400 footnotes and providing sources for virtually every quote. In its review, Salon describes Supreme Injustice as “heavily researched.” You never respond to this research, especially my extensive documentation regarding the inconsistency between the written record of these five justices and their votes in Bush v. Gore except to insult them by suggesting that no one is expected to believe “the official pieties” that they utter. Let us be very clear. I am not accusing these justices of changing their minds or of forgetting an obscure statement in one or two previous opinions. Here is what I say about Justice Scalia in Supreme Injustice:
In joining the majority opinion in Bush v. Gore, Antonin Scalia violated every single one of these salutory principles [documented in several pages of direct quotations from a variety of his own judicial and extrajudicial writings] to enable him to vote his political preferences.
Time will tell who is right. I predict that the decision in Bush v. Gore, which was entirely inconsistent with what the majority justices have written in the past, will also be inconsistent with what they write in the future. If I am right, then Bush v. Gore did not reflect a “change [of] their minds,” but rather a case of deliberate short-term judicial amnesia that was cured by the election of their candidate.
One more word on anonymous tips. On a few occasions I, like everyone who has ever written critically of Supreme Court justices, have had to rely on anonymous sources. This is precisely because judges like you threaten law clerks with disciplinary action if they blow the whistle on corrupt conduct by judges. I take a very different view. Indeed, in an op-ed piece published in the Los Angeles Times, I argue that law clerks have an ethical obligation to report misconduct they observe by judges.
The gap between us is narrowing in one important respect. You seem to be agreeing more and more with the central allegation in my book that the five majority justices would not have decided for Gore had he been in Bush’s legal shoes. You attribute this to unconscious bias and to the life experiences of the justices. I expect more self-awareness from justices of the Supreme Court. I believe that Justice Scalia, who is as smart as anyone either of us has ever met, did not fool himself. He understood exactly what he was doing. He engaged in, figuratively if not literally, the “to be or not to be” soliloquy. And he consciously decided to be a hypocrite by violating every principle he had previously espoused in order to bring about a result that he honestly believed was in the best interest of the country—namely, the election of George W. Bush as president.
In your last paragraph, you argue that “reasonable judges could conclude” that the Florida Supreme Court had violated Article II. Again I must ask you to respond to this direct question: Would these five justices have so concluded, if by doing so they would have handed the election over the Gore? Can you really look your readers in the eye and assure them that you believe Chief Justice Rehnquist and Justice Thomas—to focus on two of the most partisan of the justices—would have reached this conclusion had it meant a Gore victory? And, if you cannot, should you be defending them?
Finally, there is one major point of irreconcilability between us. You argue, quite eloquently, that Bush v. Gore can be justified by the court’s hidden agenda and secret reason of preventing a crisis. Putting aside my belief that the majority justices would not have seen this crisis if the shoe had been on the other foot, I have a strong philosophical difference with you about the role of courts in resolving crises without being candid about what they are doing. I cannot improve on the way I put it in Supreme Injustice:
Nor is there any proper place, in my view, for academic justifications, especially from a sitting judge, of decisions that are presented as being based on a specific legal ground but which are secretly based on extralegal grounds. It is one thing for unelected judges to intrude themselves into the political process on unavoidable grounds of articulated constitutional principle—as Scalia put it, because “we can help it.” It is quite another thing for them to arrogate to themselves the power to head off perceived political crises—which, given their isolated perches, they may be in the worst position to observe accurately—on the basis of legal arguments that are nothing more than pretexts. This elitist approach—the judges know best—is reminiscent of the Grand Inquisitor’s argument in The Brothers Karamazov: “We will decide all things, and they will joyfully believe our decisions, because it will deliver them from their great care and their present terrible torments of personal and free decision.” This is the antithesis of democracy. It is unacceptable in America.
