Alan M. Dershowitz is 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 of Palm Beach voters who opposed George W. Bush's efforts to stop the recount in that county. Richard A. Posner is a judge of the U.S. Court of Appeals for the 7th Circuit and a senior lecturer at the University of Chicago 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.
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StumbleUponDear 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 .
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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.)
(7/5)