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Honest Bias

By William Saletan
Posted Wednesday, Dec. 20, 2000, at 3:00 AM ET
Illustration by Robert Neubecker

The day after five U.S. Supreme Court justices locked up the election for George W. Bush, Justice Clarence Thomas brushed aside the notion that politics might have influenced the court. "Don't try to apply the rules of the political world to this institution," he pleaded. "I have yet to hear any discussion, in nine years, of partisan politics … among the members of the court." Referring to critics who think justices "appointed by certain presidents maybe hang out together," Thomas insisted, "That doesn't happen."

Thomas was wrong in both fact and theory. The justices do share ideological biases and partisan loyalties. They have worked in political jobs. They socialize with each other and with politicians on whose political acts and careers they sit in judgment. That doesn't mean they're corrupt. Like other jurists in the recount saga—Judge Charles Burton of Palm Beach County, Judge Sanders Sauls of Leon County, Justice Charles Wells of the Florida Supreme Court—the justices of the U.S. Supreme Court pride themselves on reason, fairness, and honesty. So do journalists who have covered the story. But one rule of the political world applies to us all. No matter how seldom we discuss partisan politics, our work is shaped by the subtle bias of selective scrutiny.

The justices who stopped the recount are hardly apolitical. Chief Justice William Rehnquist was a Republican poll monitor and an official in President Nixon's Justice Department. Justice Sandra Day O'Connor used to be the Republican leader of the Arizona state Senate. Newsweek reports that at an Election Night party, she called the news that Al Gore had won Florida "terrible." Her husband explained that she wanted to retire but would have to wait four more years so a Republican president could replace her. Justice Thomas worked for a decade in the Reagan administration. While he prepared for Bush v. Gore, his wife collected résumés for a George W. Bush administration. According to the Washington Post, "Dick Cheney joined Supreme Court Justices Antonin Scalia and Anthony M. Kennedy" at a Christmas party hosted by a former Republican senator a day after Scalia and Kennedy cleared Cheney's path to the vice presidency.

Did these political affiliations influence the court? Of course. The justices who ruled for Bush didn't conspire, lie, or rubber-stamp the decision. The scrutiny they applied to Bush v. Gore was as sharp as ever. They simply reserved that scrutiny for one side of the case. In oral argument, Scalia and Rehnquist fired their skeptical questions at Gore attorney David Boies, while Justices John Paul Stevens and Ruth Bader Ginsburg fired their skeptical questions at Bush attorney Theodore Olson.

Why the selective interrogation? Because each justice approached the case from the standpoint of the candidate with whom he or she sympathized. Either way, Bush v. Gore was going to cost one candidate the election. Republican justices concentrated on the threat to Bush. Democratic justices concentrated on the threat to Gore. Granting Bush's initial request to halt the recount, Scalia wrote, "The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election." This spectacularly one-sided statement was matched by Stevens' equally one-sided dissent: "Counting every legally cast vote cannot constitute irreparable harm. On the other hand, there is a danger that a stay may cause irreparable harm to the respondents [Gore]." Each justice was blind to the opposing candidate's predicament.

The subsequent briefs, oral argument, and deliberations did nothing to reconcile these dueling preoccupations. The court's majority opinion devotes its criticism to the proposed statewide manual recount defended by Gore, deeming it

inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances. … The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. … The contest provision, as it was mandated by the State Supreme Court, is not well calculated to sustain the confidence that all citizens must have in the outcome of elections.

The dissenters, on the other hand, devote their criticism to the existing count that favored Bush. "The manual recount would itself redress a problem of unequal treatment of ballots," Justice Stephen Breyer observes. Ginsburg adds that "we live in an imperfect world, one in which thousands of votes have not been counted. I cannot agree that the recount adopted by the Florida court, flawed as it may be, would yield a result any less fair or precise than the certification that preceded that recount."

Neither side is lying. Each is simply telling half the truth. Indeed, as their mutual citations make clear, each assumes that the other has made the opposite case sufficiently. Political opinion magazines follow the same principle. My friends at Mother Jones figure it's not their job to publish conservative articles. My friends at National Review figure it's not their job to publish liberal articles. From a partisan standpoint, each magazine thinks it's right. But from a journalistic standpoint, each counts on its adversary to tell the other side of the story.

Slate suffers, in different ways, from the same human weakness. When I came here, I encountered some of the most incisive, independent, tough-minded journalists I had ever met. Yet they had nothing critical to say about Microsoft's side of the federal antitrust dispute. They hadn't surrendered their skepticism; they had simply concentrated that skepticism on the case against Microsoft. Politically, while nobody at Slate toed the Democratic line in this election, most of us heartily criticized Bush. Yes, Bush deserved it. But often, so did Gore. The reason Gore got less grief than he deserved is that most of us shared his ideology. His assumptions were as invisible to us as our own.

I'd like to think that because I write about bias, I'm immune to it. But I'm not. Three months ago, I predicted that Bush would lose the election decisively. As Bush recovered and held his lead in the weeks afterward, I reread my analysis several times, looking for flaws. Everything I had written made sense and was backed up by poll numbers. After the election, I examined the faulty inferences through which I had translated an accurate account of Bush's shortcomings into an inaccurate prediction of his defeat. I never owned up to why had I drawn those inferences: because I had formed—and still retain—a negative opinion of Bush's maturity and wisdom, which I expected others to form as well. I had focused entirely on Bush's flaws. But Bush didn't have to beat a flawless opponent. He only had to beat Gore, and Gore's flaws were larger and less exposed than I recognized. I wasn't thinking about why swing voters might sour on Gore, any more than Justice Scalia was thinking about whether stopping the Florida recount three days before the federal deadline might cause Gore irreparable harm.

One lesson of these partisan oversights is that hypocrisy is a two-way street. My liberal friends and colleagues are happy to point out that Bush, having advocated tight standards for counting ballots in Florida counties that lean Democratic, advocated loose standards for counting military ballots, which lean Republican. They're quick to note that the Supreme Court's conservative justices, having opposed federal intervention in other disputes over state law, intervened to stop the recount in Florida. But if Bush and the conservative justices have switched positions in one direction, then Gore and the liberal justices have switched positions in the opposite direction. The charge of hypocrisy, leveled reflexively by each side, is itself hypocritical.

The other lesson is what they teach you in driver education: Check your blind spot. Figure out which political angle you don't see well, whether it's to the left or the right, and make sure to turn your head in that direction before crossing into that lane. A judge or politician who neglects this precaution risks calamity. A writer who neglects it risks embarrassment. Every day, hundreds of readers post messages on Slate's bulletin board accusing us of prejudicial blindness. "Another biased liberal," they write, ignoring the content of whichever article they're responding to that day. In my case, I'm just liberal enough to hope that some of them, eventually, will get the joke.

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William Saletan is Slate's national correspondent and author of Bearing Right: How Conservatives Won the Abortion War.
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Reader Comments From The Fray:


[Notes from the Fray Editor: So did Fray posters call a truce and not accuse anyone of bias, just for this article? What do you think? But still, there were also comments of exceptionally high quality, we're pressed for space here. An excellent thread on the Supreme Court and bias starts here--the best-tempered discussion ever to contain the words 'self-delusional', 'arbitary and irrational', 'disillusioning' (possibly because these words are not being applied to the posters). Another one here. And Montrose says "Not to mitigate Slate's role, but an operational bias on the part of Supreme Court Justices is of far more concern and consequence than anything practiced or even contemplated (short a coup) by Saletan."

Roublen Vesseau, here, makes this point: "Saying both sides are biased is not useful, a cop may condemn both shoplifting and armed robbery, but if he cannot judge which one is worse, he won't be a very good cop." And Aristophanes says here: "Slate certainly discovered most of W's shortcomings (y'all missed the one that bothers me) and glossed over most of Gore's, but I'm pleased to see that y'all recognize your own bias. Don't correct it, just remain aware that it colors your conclusions." So what was it we missed, A? We're longing to know.

And on no account miss History Guy's demographic analysis of the Bush vote, here, but make sure you read to the end.]


There's a difference in defining partisan as "ideological" rather than "political". Intent or motive is rightly called into question in political partisanship. It shouldn't be called into question when partisanship is measured along ideological lines.

The same was true of the Florida Supreme Court. Were they trying to "give" the election to Al Gore, or simply agreeing with his ideology that "every vote should count" is more important than statute? Were the U.S. Supremes trying to "hand" Bush the election or were they agreeing with his ideology that even the will of the people is subject to statute? Neither court was hypocritical. Both of those momentous decisions could be understood in the ideology reflected by years of precedent on both benches.

Does that make their decisions political? It doesn't. The cynical media would have us believe all partisanship is political. It's not.

--Chad Bresson

(To reply, click here.)


The hypocrisy that Saletan describes is, in fact, rampant. The tendency for people to be biased, however, is why it is wrong to trust government to do the right thing. People in government usually think they're doing the right thing, but because of their biases, they're usually being hypocritical. This is a good argument for limiting the government to matters where the outputs are visible and where bias plays a relatively small role (eg defending the borders, building roads) rather than areas where the outputs are hard to measure and bias can play a huge role (eg "making a better America").

--A.G.Android

(To reply, click here.)


What is aggravating about much political commentary, and most politicians, is not that they indulge in hypocrisy, for nothing is as trite, tired, and utterly redundant in politics than a charge of hypocrisy. The electorate would no more vote for a politician who was not a hypocrite than they would watch Public Television instead of Survivor. Rather, what is off-putting is the ridiculous misstatements of facts and, dare it be said, lies, that all partisans are prone to in a controversy such as this. Gore-pods claim that they want every vote counted, or that hand counts would be performed without partisan influence, which was manifestly untrue. Bushmen claim that any machine-rejected ballot requires a seance to determine who the vote was cast for, also untrue. While it is expected that the politicians and their handlers will lie, since that is what the electorate generally demands of any person nuts enough to run for major political office, it is unfortunate when political commentators choose to be dishonest of their own volition, with no immediate award for doing so, other than the psychic security gained by having their biases go unchallenged.

--Will Allen

(To reply, or to follow the thread, click here.)


The widespread conviction that the Supreme Court acted in this case as a partisan body, rather than as an arbiter of justice, is the basis for the derision and cynicism that greeted the majority decision. This is sad and dangerous. Any public belief that impartial justice is impossible in the Court of Last Resort is inherently volatile and corrosive. Yet the writer's conclusion, which amounts to little more than "well, everybody does it," seems meant to be, in some way, soothing. It certainly is not. True, we all should work hard to overcome our biases. But the Supreme Court, for all our sakes, must work harder, and, more importantly, it must be seen by everyone to be working harder--or the law will come to be viewed as nothing more than disguised power.

--K.P.Singho

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Saletan should be pleased that posters in the Fray criticize his liberal, Democratic bias. Some of them, I am sure, are using the powerfully persuasive pieces he writes as a check on their own beliefs. That's a good thing. There is enough of an echo chamber already in conservative and liberal quarters. The two sides need honest, not reflexive, debate.

--WillV

(To reply, click here.)


The problem is that in a society so ruthlessly democratic, so relentlessly savage toward presumptions of power (the Bush Medicis aside), we will slouch toward a purely instrumental need for the buck to stop somewhere. Because we will check-and-balance every political actor, decisions must be made. And we made the decision, unConstitutionally and somewhere right around Marbury v. Madison, that the Supreme Court would stop bucks.

This seems to me to be the most transparently logical analysis of what happened with the Court in Bush v. Gore. They decided the country had been through enough; that the principle of stopping the turmoil trumped the principle of principle itself; and these decisions were inflected by their own partisan leanings. And so they stopped the buck, using as an excuse the flimsy, membranous deadline requirement. Postmodern legal scholars have been saying for decades that judges use the law to excuse decisions they were already going to make; smart people already knew this, so smart people weren't surprised.

--Michael Signer

(To reply, click here.)

(12/20)

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