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 deny threatening law clerks with disciplinary action if they blow the whistle on corrupt conduct by judges. Yet you describe “leaks by judicial personnel” as “unethical.” You say that your law clerks are only limited in discussing “a pending case.” Yet you describe as unethical disclosures about a past case. You can’t have it both ways. It is precisely because the Supreme Court is such a closed institution that leaks have become a staple of reporting. You claim that “a footnote citing an anonymous tipster or leakster is a parody of scholarship.” What you do is far worse. Without any citation, you assure us that you know the motives of the majority justices (namely, to avoid a crisis). Either you have a source on the court that you are unwilling to disclose, or you are simply making it up. I, on the other hand, am completely candid about disclosing my sources. Indeed, you failed to tell the reader that, in discussing the Novak report concerning Justice Kennedy (a report that I independently confirmed with additional sources), I expressly state that “though I have great faith in the source of my information about his ambition to become chief justice and about the actions he has taken to further that ambition, I must acknowledge that it is difficult to assess this kind of information.” As to my charges against Katherine Harris, they were based on extensive news coverage of a criminal case involving a laundered corporate contribution to her campaign in exchange for a vote favorable to the corporation, for which a corporate executive went to prison and her own campaign manager was named as an unindicted co-conspirator. It is far better to disclose sources as I do than to withhold them as you do or to refuse to tell us whether your speculation is based on any inside information. Virtually every newspaper in the country, including the New York Times, relies on unnamed sources in reporting on the Supreme Court. This is so for an obvious reason: Many lawyers are terrified about telling the truth about that court, as well as other courts. I believe that lawyers and law professors owe an ethical obligation to say what they believe about judges and not to cover up judicial improprieties, as so many lawyers are wont to do. It is an open secret that many judges willfully distort the trial record and the case law in at least some cases. Indeed, you seem to acknowledge this reality in your defense of pragmatism. You denounce “rancorous speculation about the justices’ motives,” while favoring speculation that puts the best light on their actions and motives. I indulge no presumption either way, and simply call it as I see it based on my experience and on the available facts.
You seem to imply that if a decision can be justified—if a reasonable judge could have come to that conclusion—then that alone is proof of proper motives. As you know, in Supreme Injustice I have an entire chapter on precisely that question, in which I use the case of Judge Martin Manton, who was careful to write reasonable and correct decisions after taking bribes to favor a particular litigant. After analyzing the Manton case, I conclude as follows:
The plausibility and consistency of a judicial opinion on its face may be necessary to prove that it was motivated by appropriate considerations, but it can never be sufficient in cases where there is compelling evidence of improper motivation. That is why the arguments being offered by most of those seeking to defend the majority justices in Bush v. Gore are, at best, incomplete. These traditional legal arguments are limited to showing that an honest justice could have decided the case as the majority did, and could have done so entirely on the basis of plausible legal principles. Even if that limited claim is true in the Florida election case—and I believe that it is not—it would not prove that these justices would have decided this case as they did if the shoe had been on the other foot, since no one denies that there are also plausible legal principles that would justify the opposite result.
You never take up this challenge, posed directly by Supreme Injustice. Here is your chance.
Let me now summarize our agreements and differences. You say that it is “entirely possible that had Gore been challenging a recount ordered by a state supreme court at the behest of Bush, the conservative justices would have voted against Gore.” You thus concede 90 percent of my thesis and fall back on the speculation—unproved and unsourced—that the justices’ partisanship was unconscious. I believe that the justices acted consciously, knowing full well that they were departing from their long-expressed legal principles. I prove my conclusion by cataloging a series of inconsistencies, to which you never respond except to argue that judges’ arguments (you call them pieties) should not be taken seriously. You must admit that if I am right—if any justice willfully abandoned his or her prior precedents in order to assure the election of a preferred candidate—then that justice acted corruptly and violated the judicial oath. But even if you are right in arguing that the justices fail the shoe-on-the-other-foot test for unconscious reasons, that is damning with faint praise. We should expect more self-awareness from justices appointed for life, and we must demand greater candor from them.
I invite the readers of this exchange to read both of our books and to continue this dialogue with us over e-mail. My e-mail address is alder@law.harvard.edu.
