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The Supreme Court and the 2000 Election

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from: Richard A. Posner
to: Alan M. Dershowitz

Posted Tuesday, July 10, 2001, at 3:00 AM ET

Dear Professor Dershowitz:

We've wandered pretty far from Bush v. Gore. The focus has shifted to your modus operandi as muckraking legal journalist, and let me comment briefly on that before turning back to the case.

Judges vary in the degree of confidentiality they demand of their law clerks. I demand very little, just no public comment on pending cases. Other judges demand much more. No judge, however, could properly demand that his law clerks maintain silence about unethical behavior. It does not follow that leaks to reporters (or to Alan Dershowitz) are the proper method of reporting unethical behavior. The danger that unsubstantiated defamatory rumors will obtain wide circulation through that route is great. A law clerk who suspects unethical behavior can and should complain in confidence to judicial disciplinary bodies, or, in the case of actual illegality, to the FBI or the Department of Justice.

I don't pretend to know the motives of Supreme Court justices. I merely hesitate to assume the worst in the absence of evidence, when alternative interpretations are readily available and more plausible. In your latest submission you suggest that only 10 percent of your charge that the conservative justices acted corruptly is based on leaks and tips and 90 percent on the "shoe on the other foot" thesis. And for the reasons that I have stated repeatedly and that you have not responded to, that thesis is consistent with good faith on the part of these justices.

Which is not to say that the justices covered themselves with glory. The novelty and difficulty of the issues, the pressures of time, the division of opinion among the justices, the sense of impending crisis, and the overwhelming publicity explain, without need to speculate on corrupt motives, the many weaknesses in the opinions of both the conservative and the liberal justices. All I argue in my book, and all I have argued in our exchange, is that a good opinion could have been written stopping the recount on the ground that the Florida supreme court's recount order violated Article II of the Constitution. Article II is explicit that the setting of the ground rules for the selection of a state's presidential electors is the prerogative of the state's legislature. It is true that there is no evidence that the choice of this word (rather than simply of "state") was deliberate, or that the framers of the Constitution foresaw the use of Article II to limit the scope of state judicial intervention in the selection of a state's electors. But constitutional provisions have traditionally been treated more as resources than as commands, resources that practically minded judges use to craft solutions to problems unforeseen by the framers. The problem at hand is a state court's intervening to change the result of an election of the state's presidential electors by changing the ground rules under which the election was held. Such intervention sets the stage for an interbranch struggle within the state over the choice of the electors, and such a struggle is likely to lead to the appointment of rival slates of electors and hence to the kind of crisis that Bush v. Gore headed off.

The Article II ground has been criticized as implying that state courts have no power to interpret the state's election statute, so far as bears on presidential elections, no matter how ambiguous or riddled with gaps the statute is; or to declare it unconstitutional, no matter how blatantly its terms violate settled constitutional principles, whether federal or state. But that is not what the Article II ground implies. The state courts retain their ordinary powers. But the Supreme Court is authorized to intervene if, in the guise of interpretation, the state court in effect rewrites the state election law, usurping the legislature's authority. The difference between interpretive and usurpative judicial "work" on statutes is subtle, but it is illuminated by comparison to the settled distinction in the law of labor arbitration between an arbitrator's interpreting a collective bargaining agreement, on the one hand, and, on the other, importing his own views of industrial justice in disregard of the agreement. The former is legitimate interpretation, and it is insulated from judicial review; the latter is usurpative, and it is forbidden.

The principles that I have outlined so far actually commanded the support of all nine justices in the first opinion in the election litigation, that of Dec. 4. A unanimous decision by the Supreme Court may be wrong, but is unlikely to be so far wrong as to impair the court's authority. The issue that divided the court later was whether the Florida supreme court had stepped so far out of the line of the state's election code as to bring down the bar of Article II. That is a difficult issue, but as I have argued at length in my book and continue to believe, resolving it in favor of invalidating the court's rulings and hence stopping the recount would have been a plausible application of Article II. It's a shame the court failed to follow this route.

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from: Richard A. Posner
to: Alan M. Dershowitz

Posted Tuesday, July 10, 2001, at 3:00 AM ET
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Alan Dershowitz is a professor of law at Harvard. His latest book is Preemption: A Knife That Cuts Both Ways. Richard A. Posner is a judge, U.S. Court of Appeals for the 7th Circuit, and a senior lecturer at the University of Chicago Law School.
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Reader Comments From The Fray:


As long as none of the justices seek retirement during this presidential term, I will be content with the constitutionality of the decision they made in Bush v. Gore… The SCOTUS need not be correct on either the facts or the law, their decisions are final. From a checks and balances point of view, depending on the nature of the decision, the Congress and the President (or the state legislatures and Governors n limited cases) may have several remedies available to them, such as :

(a) a constitutional amendment or perhaps a statute if the matter decided was not of constitutional proportion;

(b) if the court's rendering is seen by the House of Representatives as so out of order that it constitutes a matter involving a high crime or misdemeanor, perhaps the Justices may individually or as a group be impeached, and if convicted by the Senate, removed from office.

Even though I believe the Court was being partisan… I do view the decision on its face to be a constitutional one, provided no Justice seeks to create a situation where the man they selected to be President for this term, is in a position to appoint a replacement, during this presidential term. (Death, except by suicide, is an exception, and perhaps a retirement due to grave and debilitating health problem that would prevent the Justice from continuing, and that arose after the decision was made, might be another exception.)

--Joann Prinzivalli

(To reply, click here.)


Judge Posner makes a point of criticizing Professor Dershowitz's use of what he calls "unethical leaks by judicial personnel" to show that the Supreme Court acted in an unprincipled fashion…However, it is easy to see situations where such leaks would not only be protected by the First Amendment but would be perfectly ethical. Imagine, for instance, if a clerk received a specific instruction from a Supreme Court Justice to "draft an opinion that makes ____ president, and I don't care how" or if a Justice admitted to his or her clerk that the Justice wanted the case to go a certain way so that the Justice could retire and be replaced by a like-minded successor. How about a Justice's statement that he or she was offered a job in the new administration if he or she decided Bush v. Gore in a certain manner? Would Judge Posner contend that an after-the-case-concluded leak of such a statement would be "unethical"? Would he insinuate that a book that revealed such a statement is somehow improper?

There is a big difference between honoring the reasonable expectations of confidentiality that judges have with respect to their communications with clerks, and taking the position that there can be no basis for disclosing the internal deliberations of a court. The latter position would essentially shield judges from whistleblowing that every other government employee's activities are subject to, and could constitute a serious threat to open government.

--Dilan Esper

(To reply, click here.)

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