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The Supreme Court and the 2000 Election

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

Posted Wednesday, July 4, 2001, at 3:00 AM ET

Dear Professor Dershowitz:

The gap between us may be narrowing a little. In your new submission I notice no defense of using anonymous tips, including unethical leaks by judicial personnel, to prove corrupt motives on the part of Supreme Court Justices. And no claim that the Court's decisions were preposterously, absurdly, wrong or that the liberal justices either were "dupes" or were "playing a game." These are prudent silences. The Court's first decision, which was unanimous, both held that Article II of the Constitution indeed limits the interpretive authority of state courts regarding selection of presidential electors and "broadly hinted" (your words) that the Florida supreme court had exceeded that authority. Two of the four liberal justices agreed that the Florida court's recount order created equal protection problems that demanded a remedy. Of 16 state and federal supreme court justices who weighed in on the lawfulness of the recount, 10 thought it unlawful, of whom half are Democratic appointees.

Without evidence of improper motives that consists of decisions so off the wall that no honest judge could have joined them or did join them, and without the "evidence" so emphasized in your book of anonymous leaks and rumors (some quite ugly, such as that Justice Kennedy has changed his vote in cases in a quest to become chief justice), you're left to insist that unless the conservative justices would have decided for Gore had he been in Bush's shoes they are corrupt ("corrupt" and its cognates are the leitmotif of your book). I don't accept this. Every advocate knows that in arguing a position one tries to make it connect with something in the judge's life. Is it happenstance that the early cases on sex discrimination focused on discrimination against men, for example on laws setting a higher drinking age for young men than for young women? The women lawyers like Ruth Bader Ginsburg who pressed these cases wanted to present the issue of sex discrimination in a context that would trigger the empathetic reactions of male judges. For those who believe in expansive notions of equal protection, or who think Article II a valuable tool for heading off debilitating presidential election controversies, it was fortunate rather than otherwise that the case that raised these issues was named Bush v. Gore rather than Gore v. Bush; it meant that the issues arose in a form more likely to catch the sympathetic attention of conservative justices. Had the shoe been on the other foot, the liberal justices might well have been more sympathetic to the arguments for stopping the recount—especially after agreeing on Dec. 4 that the Florida court might have violated Article II.

The fact that extraneous factors may cause a judge to be more alert to a particular line of argument than he might otherwise be, that judges' decisions do not compose a harmonious whole, that judges like other people change their minds, that unconscious feelings influence judges, that the prospect of a national crisis that timely judicial intervention would avert does not leave judges wholly unmoved, that time pressures may prevent judges from articulating the grounds of their decisions with a cogency that will withstand unfriendly academic scrutiny, and that the course of a judge's decisions will not track perfectly the official pieties of the judicial office that he will utter from time to time—these are such pervasive features of the judicial process that to regard them as proof of corruption is to condemn the entire process. I had not thought you meant to go that far. And did you really think, until Bush v. Gore knocked the scales from your eyes, that Justice Scalia was quite the legal formalist that he paints himself in the passage you quote? I doubt you were that naive, since it was not Bush v. Gore that prompted you to suggest in your book that Scalia is the voice of "Spanish clerical conservatism."

Your search for bad motives is a snipe hunt. Let's focus on the merits of what the Supreme Court did. You pin your flag to the Beckstrom case, saying that if I favor counting a ballot I call the failure to count it "innocent" but that if I don't want it counted I blame the failure on the voter. Not so. As I emphasize in my book, I consider the voter errors that resulted in the disfranchisement of many thousands of Florida voters innocent, not blameworthy, errors. I urged the adoption of user-friendly voting technologies that will enable people who have reading difficulties to cast valid votes. Even complete illiterates should be able to make their votes count. They have interests just as other people do, and the other people can't be relied on to understand and protect those interests. And nowadays even literate voters get most of their political information from radio and television rather than from the print media.

The central legal question is whether the Florida election code authorized the Florida courts to void an election on the basis of voter error (Beckstrom upheld a refusal to void an election) when the state and local election officials who under Florida law get to call the shots had reasonably declined to set aside the result of the election for the purpose of counting chad. Beckstrom did not involve chad, and while Florida law may permit election officials to embrace "chadology"—the name a New Yorker writer gave years ago to "the inexact science of divining what the voter intended in the case of a mere indentation or whether the card reader counted a hole that was partly or wholly blocked by a hanging chad"—it certainly does not require them to do so. Reasonable judges could conclude that the Florida supreme court had so far disregarded the law as to violate Article II of the Constitution, as Florida's chief justice opined in his powerful dissent.

[Editor's note: This dialogue will resume on Friday, July 6.]

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

Posted Wednesday, July 4, 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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