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Subject: Dershowitz v. Posner on Bush v. Gore dialogues The Supreme Court and the 2000 Election By Alan M. Dershowitz and Richard A. Posner http://slate.msn.com/id/111313/ Tuesday, July 3, 2001, at 4:00 p.m. PT From: Alan M. Dershowitz 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 Seventh 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. Judge Posner, You and I reach diametrically opposite conclusions about the Supreme Court's decision in Bush v. Gore. You characterize it in your book as "a rather good one," whereas I conclude in my book that it "may be ranked as the single most corrupt decision in Supreme Court history." Despite this profound difference in conclusions, there is a remarkable consistency between the approaches we each take in evaluating the Supreme Court majority. We both conclude that the rationale that formed the basis of the court's decision?that the Florida hand count violated the equal-protection clause?cannot be justified. You are right when you say that for voter discrimination to constitute a violation of the equal-protection law, "it would have to be deliberate," and you concede that "it was not deliberate" here. You also agree that the argument of the three concurring justices (Rehnquist, Scalia, and Thomas)?that the Florida Supreme Court's decision violated Article II of the Constitution, which provides that the state legislature, not the state courts, are authorized to determine the manner by which electors are selected?requires an activist stretch. You acknowledge that these three conservative justices, who generally feel constrained by fidelity to the text and intentions of the framers, gave Article II "a meaning very likely unintended by the Constitution's framers, whom conservative lawyers and judges tend to venerate to the point of idolatry." You also acknowledge that "the decision deals a blow to states' rights by overriding a state supreme court's interpretation of its own state's statute." The major thesis of your book is that although the decision was legally questionable at best, it can be justified by looking at a secret and hidden agenda that the majority justices must have had in mind: namely, a pragmatic desire to head off a constitutional crisis. You posit "pragmatism as the hidden ground of decision" not only in this case, but in other "notable decisions" of the high court. You acknowledge that "it would have been nice had the majority justices in Bush v. Gore articulated the practical concerns that justified the boldness of their constitutional innovations," but you defend the justices' duplicity by noting that "judges are shy about the pragmatic grounds of their decisions." I, too, argue that there was a secret and deliberately hidden ground for the majority's decision, namely, the desire to see George W. Bush, the Republican candidate, elected president. You agree with me that "a preference for one presidential candidate over another" would be "exceptionally foolish?and, even to a pragmatist, plainly lawless." You appear to acknowledge that the majority justices may have unconsciously been influenced by their own "undeniable interest" in electing the president who would select "colleagues and successors who share their preferences," but, you "doubt that any of the justices has so debased a conception of the judicial office as to try deliberately to swing the election to his preferred Presidential candidate" (italics yours). The issue between us is thus squarely met. We both
believe that the decision cannot be justified on the
grounds set forth in the majority opinion. We both
believe that it is proper, indeed necessary, to examine I now challenge you to respond directly to the central question of my book: Can you look your readers in the eye (virtually if not directly) and assure them that you are completely confident that each of the five majority justices would have voted to stop the hand count had the shoe been on the other foot?had Gore been ahead by a few hundred votes and had Bush needed the hand count to have a chance of winning the election? In Supreme Injustice I present the following heuristic: "Imagine if the one hundred most experienced observers of the high court?academics, Supreme Court litigators, journalists who cover the justices?had been presented, one year before the Florida case, with a hypothetical case based precisely on the facts of the Florida case but without the names or party affiliations of the candidates" and were asked to predict how the majority justices would have voted. I now ask that question of you. In your book, you seem to imply that the majority justices might fail that test, but you suggest that the minority justices, the Florida Supreme Court justices, and liberal academic critics of the court would also fail the test. Even if that is true, it is not much of a defense of the majority justices. Moreover, you have failed to disclose to your readers the full picture of what the Florida Supreme Court did. You imply that the Florida Supreme Court decided to change "the outcome [of the election] by altering the election rules after the result is known." You imply throughout the book that prior to this election the law in Florida had always been that a hand recount is permissible only to retrieve votes that are a result of "tabulating error," rather than "voter error." You try to persuade your readers that the law in Florida, prior to the 2000 election, was that if "the voter is complicit," if the voter "fails to follow instructions," there can be no recount. (The majority of the Supreme Court made the same assertion in its opinion, and Justice O'Connor emphasized it during oral argument.) But as I demonstrate in Supreme Injustice, and as was fully briefed and argued to the United States Supreme Court, Florida law had long rejected your sharp distinction between voter error and tabulation error. In the leading case, the Florida Supreme Court had ruled that Florida law required counting the ballots of several thousand voters who had committed voter error by not following the clear instruction to "fill in with a no. 2 pencil." These voters had used pens and other kinds of pencils, and the optical scanners could not read their marks. This was the Florida law at the time of the 2000 presidential election, and it is scandalous that the Supreme Court majority failed to discuss this case fully, honestly, and openly. Did they have a secret pragmatic reason for depriving us of this highly relevant piece of information? Finally, I challenge you to defend the use of secret, hidden reasons by judges in a democracy. Surely Justice Thomas would not agree, for as he once nicely put it: "Arguments should not sneak around in disguise." Nor could Justices O'Connor and Kennedy, who cautioned only eight years earlier: "The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressure having, as such, no bearing on the principled choices that the Court is obliged to make." It is this kind of blatant inconsistency (and others documented in Supreme Injustice) between what the majority justices have said in the past and what they did in Bush v. Gore that conclusively proves they knew exactly what they were doing: deliberately trying to swing the election to their preferred candidate. What data do you offer to prove that their secret motivation was neutral pragmatism that would pass the shoe-on-the-other-foot test? From: Richard A. Posner Dear Professor Dershowitz: You say (more emphatically in your book) that the Supreme Court's decisions were not merely wrong but preposterously so and that the five conservative justices who formed the majority in Bush v. Gore were actuated by improper motives. The claims are related; the feebleness of the decisions is your only evidence, apart from unverifiable anonymous tips and rumors, for the charge of corruption. Yet the Court's first decision (December 4), vacating the Florida Supreme Court's decision extending the deadline for recounts, was unanimous. Your contention that it was off the wall leads you to speculate in your book that the four liberal justices were either dupes of the majority or incompetent tacticians. The court's final decision (December 12), which stopped the recount ordered by the Florida court, you regard as equally preposterous, yet two of the liberal justices agreed that there was a denial of equal protection requiring a remedy, though they disagreed about what the remedy should be. Florida's chief justice, joined by two of his colleagues, had argued that the recount was unlawful. All three are Democratic appointees. Of the 16 judges on the Florida and U.S. supreme courts, 10 thought the recount unlawful. Are they all crooks or dupes? Article II of the Constitution requires a state's presidential electors to be selected in the manner directed by the state's legislature. All nine justices agreed on December 4 that if the Florida Supreme Court had in effect rewritten the state's election code, on the basis of generalities in the state constitution, in order to permit hand recounts to go forward, its decision could not stand. As you acknowledge in your book, the court's unanimous decision "broadly hinted that the Florida Supreme Court had not deferred sufficiently to the legislature." Indeed. The election code authorizes the secretary of state to interpret and apply the code, under which only an "error in the vote tabulation" permits a full hand recount of a county's votes. She interpreted a tabulating error as one caused by the machines that count the votes, not one caused by a voter's failing to follow the voting instructions. Right or wrong, her interpretation? as the trial judge, a Democrat, ruled?was not unreasonable, and so under settled principles of Florida administrative law the state Supreme Court should have upheld it?and Bush would have been declared the winner in Florida by 930 votes. After the court-extended deadline for recounts expired and Bush was certified the winner by an improperly diminished margin of 537 votes, Gore sued, seeking additional recounts. The trial judge found that the local election officials had been justified in turning down his demand; again, under settled principles of administrative law this should have been the end of the litigation. But the Florida Supreme Court again reversed, ordering the arbitrarily configured statewide hand recount that the U.S. Supreme Court later stopped. The order made a hash of the code, as the dissenters in the Florida court pointed out, and in doing so, as Florida's chief justice vigorously argued, violated Article II. Was he out of his mind? You say the code makes the "voter's intent" the paramount consideration in deciding whether his vote counts and that all the Florida Supreme Court did was carry out this command. But the code uses the term in reference to the situation in which, through no fault of the voter, the ballot is damaged or defective. The Beckstrom case (the "no. 2 pencil" case) merely refused to void an election because of innocent failures to comply with technical requirements of state election law. Never had Florida courts voided an election just because some voters had so spoiled their ballots that tabulating machines in good working order could not read them? let alone because the machines hadn't recorded "dimpled ballots as votes; the machines are not supposed to record dimpled ballots. The recount ordered by the Florida Supreme Court on December 8 could not have been completed (with judicial review to make sure it had been conducted properly) by the "safe harbor" deadline of December 12. So if the U.S. Supreme Court hadn't entered the fray, Congress might well have had to choose between rival slates of Florida electors in January. That would have been a donnybrook, possibly resulting in the appointment of an acting president on January 20 when Bill Clinton left office, further embittering our politics, destroying the new president's transition and maybe his legitimacy as well. Article II is a tool for preventing such messes by preventing state interbranch struggles over the rules for selecting presidential electors. The legislature is to set the rules; the courts are not to change them?especially after the outcome of the election is known. You acknowledge the crisis potential but argue that pragmatic concerns, at least if unacknowledged, have no place in adjudication. I doubt that you really believe this. The Warren Court decisions that you admire were not emanations of the constitutional text. Earl Warren, William Brennan, and Thurgood Marshall were not legal theoreticians. Their decisions were not compelled by existing legal understandings but rather were practical solutions to perceived social problems, as was Bush v. Gore. None of the famous Warren Court cases is notably candid. In Brown v. Board of Education, for example, the court pretended not to be overruling Plessy v. Ferguson If this is "duplicity," your favorite judges are duplicitous. I prefer to say that like all public rhetoric, judicial rhetoric is rarely completely candid. No sophisticated legal professional takes seriously the passage you quote from Planned Parenthood v. Casey about the Supreme Court's having "to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises. ?" A more troublesome point is that, as I point out in my book, the justices doubtless care who their colleagues and successors will be, and of course it makes a difference who the president is when a vacancy occurs. This fact forever cast a shadow over Bush v. Gore. But it is as germane to the liberal justices, whom you do not accuse of impropriety, as to the conservatives. (Your nose for improprieties is selective; you report without criticism improper leaks by an unnamed liberal justice and by a number of unnamed Supreme Court law clerks?indeed you rely on those leaks as evidence of the conservative justices' wrongdoing.) Concerns of this sort, operating unconsciously, might cause a justice to notice features of the case that he or she might otherwise not notice. If that is "bias," it is inevitable; it is also a compelling argument for our diverse judiciary, composed of judges who, having different values and experience, notice different features of the cases they hear. So, you may be right that had the shoe been on the other foot the conservative justices would not have stopped the recount. But this does not prove corrupt motives (nor the rumors you recount in your book). We must imagine an all-Republican state court ordering a recount, and Gore challenging it. Such a court's opinion would not have been festooned with the populist rhetoric of the Florida Supreme Court that must have set the conservative Supreme Court Justices' teeth on edge. It would have been more formalistic, leaving less room for an Article II challenge. Still, unconscious preference for Bush's becoming president might have made the conservative justices more alert to the weaknesses in the Article II and equal protection challenges in the hypothetical case?and the liberal justices more alert to the strengths of those challenges. The shoe would have been on the other foot, merely pinching a different set of corns. From: Alan M. Dershowitz 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. Court of Appeals for the Seventh 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. Dear Judge Posner, You have taken advantage of the fact that you read Supreme Injustice while many of the readers of this exchange did not in order to distort the thrust of my book. You claim that "the feebleness of the decisions is [the] only evidence [I offer], apart from unverifiable anonymous tips and rumors, for the charge of corruption." I say exactly the opposite, repeatedly, throughout my book. Indeed, from Pages 98 to 110, I argue extensively that even if the opinions were somehow correct as an abstract matter, they would be corrupt if the justices would not have accepted these "correct" arguments had the shoe been on the other foot. In my challenge to "academic defenders" of the majority justices, I postulate the possible correctness of the justices' arguments and nonetheless maintain "I believe it is morally wrong for scholars to defend the majority justices, even if they think their arguments are theoretically defensible, unless they honestly believe that the justices themselves would have offered these arguments on behalf of Gore if the shoe had been on the other foot." I explicitly state that the weakness of the justices' arguments provides no more than "probable cause for probing their motives." The primary evidence I rely on to prove corruption?evidence you willfully ignore?consists of the previous writings of the five justices themselves. In writing this book I have read more than 500 opinions, articles, speeches, and testimony of these justices. In the central chapter of my book, titled "The Inconsistency of the Majority Justices With Their Previously Expressed Views," I catalog a series of major inconsistencies between what these justices have said in the past and what they did in Bush v. Gore. These are not "tips" or "rumors"; they are the published record of the justices themselves. You do these justices no favor when you suggest that "no sophisticated legal professional takes seriously" the kind of inconsistent passages I quoted by Justices Kennedy and O'Connor. Consider, for example, an argument made dozens of times by Justice Scalia against an ad hoc adjudication and in favor of general rules that not only constrain lower courts but constrain individual justices. As Scalia has put it, "If the next case should have such different facts that my political or policy preferences regarding the outcomes are quite the opposite, I will be unable to indulge those preferences; I have committed myself to the governing principle." That view is entirely inconsistent with your view of the pragmatist who "regards adjudication, especially constitutional adjudication, as a practical tool of social ordering and believes therefore that the decision that has the better consequences for society is the one to be preferred." Would you regard anyone who took Scalia's views seriously as unsophisticated or unprofessional? I'd love to hear Scalia say that. Unfortunately, the manner by which you have deliberately distorted the entire thrust of my book by totally ignoring its central claim of inconstancy is all too typical of how some appellate judges willfully distort the trial record and the case law in order to achieve the results they believe produce "the better consequences for society." As further evidence of your distortion, let us go back to the No. 2 pencil case, which you describe as reflecting "innocent failures to comply with technical requirements of state election law." You seek to distinguish it from cases in which "the machines are not supposed to record dimpled ballots." But according to the record in the Beckstrom case, the machines there were also programmed not to record marks made by anything other than a No. 2 pencil. If you favor counting the ballot, you call it an innocent failure, but if you disfavor counting the ballot, you blame it on the voter. Finally, you seem to acknowledge that I "may be right," that had the shoe been on the other foot, the conservative justices would not have stopped the recount. You offer several defenses of these justices. First is that they must have acted unconsciously? an insulting assessment that blinks reality in a case as political as this one. Intelligent justices had to know that they were violating every principle they had previously deemed sacrosanct in their writings. Second, you claim that the liberal justices would have been just as bad, as if that would in any way justify what the majority justices have wrought. And third, you invoke justices you say I admire and argue that they have done the same thing. First, my admiration for the Warren Court justices has never extended to their lack of candor. In a democracy, there is never an excuse for a court invoking the Jack Nicholson claim: "You can't handle the truth." As you know from reading Supreme Injustice, I have always been a strident critic of Roe v. Wade as well as other opinions of the Warren and Burger courts that lacked candor and fidelity to constitutional principles. But even so, Bush v. Gore is qualitatively different. In none of the cases that you (and I) criticize have the justices violated their own previously expressed principles in order to bring about a partisan?as distinguished from an ideological? result: namely, the election of a preferred presidential candidate. I challenge you?and I hope you will accept this challenge and not divert it as you have my previous challenges?to name a single modern decision of the United States Supreme Court in which the majority justices were as inconsistent with their own prior writings in a case which gives rise to a reasonable suspicion that, either consciously or unconsciously, they preferred a partisan outcome favoring a particular candidate? I believe this is the only case in modern Supreme Court history whose outcome depended on the names and party affiliations of the litigants. I prove this serious charge in Supreme Injustice by marshaling the prior inconsistent writings of these justices. Now it's your turn to defend or dispute these inconsistencies rather than to attack the straw men you have erected. From: Richard A. Posner 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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