History as justification.

History as justification.

History as justification.

The law, lawyers, and the court.
March 15 2004 4:43 PM

Tough Choices

Chief Justice Rehnquist explains Bush v. Gore.

Book cover

You probably already know that Chief Justice William H. Rehnquist is an amateur history buff, and that one of the ways he tantalizes the public is by authoring weirdly prescient histories of modern political conflicts. Thus, his 1998 book All the Laws but One: Civil Liberties in Wartime featured an odd foreshadowing of the debate we've been having about executive power and national security since 9/11, and his 1992 book Grand Inquests:The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson popularized impeachment, long before the idea of impeaching President Clinton was cool.

With his just-released Centennial Crisis: The Disputed Election of 1876, Rehnquist reverts from prophetic to curiously backward-looking. His project here is to describe that other too-close-to-call election—the 1876 contest between Rutherford Hayes and Samuel Tilden—in which Tilden won the popular vote, but uncertainty over the Electoral College returns in several states (including, yes, Florida) left the outcome of the presidential election in doubt until just two days before Inauguration Day 1877. Unlike the disputed election of 2000—a drama that looms large over Rehnquist's history—the impasse was resolved not by the Supreme Court alone, but by a special 15-member electoral commission, comprising 10 commissioners, with five selected by the House (controlled by Democrats) and five by the Senate (controlled by Republicans), and five Supreme Court justices. 

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Rehnquist takes us through the background of the conflict, offering lively accounts of the main characters, the corruption simmering under the political landscape, and the hyperbolic media accounts of the day. It was a time when young women launched adultery scandals, railroads were built to line pockets, and guns played a central role in political discourse, and Rehnquist obviously relishes every moment of it. (Serious historians have some serious complaints about his treatment, but Rehnquist has never pretended to be all that serious about anything but popularizing history). Rehnquist describes how an early proposal to have the Supreme Court decide Hayes-Tilden died on the vine, before the commission was convened, and he offers wonderful insight into the acknowledged and accepted ideological partisanship of the five justices ultimately appointed to the commission. After much wrangling, it was decided to put onto the commission two justices appointed by a Democrat and two appointed by a Republican  and to have those four choose a fifth member. The obvious choice to everyone was the 300-pound behemoth Justice David Davis, an Independent, who declined. The four justices then settled on Joseph Bradley.

The rest of the book consists of Rehnquist's defense of Bradley, a Republican, who, in an "impossible position," ultimately cast the deciding vote in favor of the Republican candidate, Rutherford Hayes. Rehnquist contends that the remedy sought by the Democrats on the committee—an exacting scrutiny of all the alleged fraud and corruption "behind the certificates" in the contested states—would have proved both impossible for the commission and disastrous for the country. The parallels, while never spoken aloud, are breathtaking: legal questions of how to prove the alleged fraud; questions over which areas were disputed; what the heck to do with a decision from the Florida Supreme Court; and, looming always, how could all this be resolved before Inauguration? The chief justice also goes to great lengths in exonerating Bradley from subsequent claims that, after being lobbied by colleagues at midnight, he changed his vote the night before it was announced to the commission. (Rehnquist, playing Perry Mason, does so using primary texts, a "Secret History" of the commission, and the hearsay rule).

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

You can try to read Rehnquist's epilogue—in which he details incidents in which Supreme Court justices accepted extrajudicial tasks at the request of the executive—for some explicit clue as to his own feelings about the correctness of the court's intercession in Bush v. Gore. Of course you'd probably learn more if you went down to the justices' dining room, pilfered his coffee cup, and tried to read patterns in the grinds. Rehnquist's hallmark as a historian is always to leave Rehnquist out of it. That's how he avoids appearing partisan. And while he concludes that virtually every time a justice took on some executive function, it proved disastrous—from John Jay's efforts to negotiate a peace treaty with Great Britain, to Robert Jackson's yearlong prosecution of the Nuremburg trials, to Earl Warren's investigation into the Kennedy assassination—he ends, oddly, with a resounding defense of the five justices who took part in the 1876 commission. Their actions were justified, he writes, because the stakes in that case were too high: an unresolved election and no means of achieving finality, threats of violence or "political Russian roulette." He concedes that the apparent partisanship of the five justices cast some doubt upon the reputation of the court, but in doing so, the nation was saved from "if not widespread violence, a situation fraught with combustible uncertainty." Rehnquist thus concludes that, "in the view of this author, the justices "did the right thing."

"Perhaps when such a dispute erupts, there is no means of resolving it that will satisfy both sides," Rehnquist writes in his prologue, trying to persuade us that no possible resolution, in 1876 or 2000, would have been deemed legally sound or politically pure. Perhaps, but this fails to account for the national cynicism and despair that exploded in both eras, when these disputes were resolved by a single vote and down purely ideological lines. Some conservative legal scholars have argued that while all the legal jiggery pokery behind the 2000 presidential election decision was less than sound, the court ultimately did the right thing with its quick, decisive, and binding decision. The alternative would have been, according to scholars like Richard Posner,a president chosen by Congress and a far more bitter battle.The court sacrificed its reputation in the short term for finality and peace. And should you choose to read Centennial Crisis as an historical defense of that legal position by an interested party, well, Chief Justice Rehnquist, while silent, would not likely be disappointed.