Supreme Injustice: How the High Court Hijacked Election 2000 (Hardcover)

As a lawyer, I used to feel comfortable with the Supreme Court's ability to handle important issues. Whether I agreed with the conclusion of the case or not, I could predict the line of argument that led the court to its decision. I also knew that the court would try to intervene as little as possible. The only time that comfort level was violated was when the second Supreme Court decision came in Bush versus Gore and included a stay of the recount in Florida. I was flabbergasted. This book helps me to understand how such a result could have occurred. Every attorney, lawmaker, and citizen who cares about having a government of fairly administered laws should read this book, and take appropriate action to see that whatever happened in Bush versus Gore in the Supreme Court does not recur.

Professor Dershowitz makes a bold claim that "the unprecedented decision of the five justices to substitute their political judgment for that of the people threatens to undermine the moral authority of the high court for generations to come." "I believe that they would not have stopped a hand recount if George W. Bush had been seeking it." "In this book, I marshal the evidence in support of this charge."

The book describes in a layperson's terms the legal issues behind the case, and goes on to provide hypotheses about what happened.

Basically, two laws were in conflict in Florida. One called for elections to be certified by a certain date (determining who won and lost). The other called for the ballots to be counted in order to ascertain the intent of the person voting. For over 200 years, it has been established law that courts should decide such conflicts of laws. The Supreme Court of Florida had done so, and concluded that the recounts should continue. Candidate Bush appealed that decision. The Supreme Court of the United States took the case (something that it did not have to do), and remanded the case back to the Supreme Court of Florida for further clarification. That action seemed both proper and appropriate. Then candidate Bush appealed again, and the Supreme Court of the United States heard the case again (which it did not have to do).

The national Supreme Court voted 5-4 to stay (stop) the recount process, pending arguments, arguing that to allow the recounts to continue would cause irreparable harm to candidate Bush. The effect was to bring the electoral victory to candidate Bush. That decision made then and makes now no legal sense. There was no irreparable harm done to anyone by letting the recount continue. There was irreparable harm to those who ballots were discounted and to candidate Gore by stopping the recount. I cannot fathom this decision. It is the sort of thing that happens in tin-horn dictatorships all of the time to legitimize the conclusions of the person in power.

The final decision then rested on an argument that equal protection under the laws required that the certification law hold sway over the accurate counting law. This is the first time that that section of the Constitution had ever reduced the rights of voters. In the past, it had been used to expand the rights of people to have their votes included and counted. The origin of the section was to deal with racial descrimination against blacks after the Civil War so that their ability to vote would be protected. Now, suddenly, the intent of that part of the Constitution was being used to say that some votes didn't count. That's a very strange argument. In the future, that argument could be used to deny the ballot to minorities and people whose opinions are not popular.

The Supreme Court of the United States also said that the Supreme Court of Florida had no right to decide on the conflict of laws issue. There is simply no legal basis for that conclusion.

The problem with these arguments is that they would undermine all sorts of cases from the past. What is the lawnow, as a result? The Supreme Court of the United States said that they would interpret the law this way only in this one case. In other words, they made up the law to fit a compromise that they reached behind closed doors. That's not law, that's dictatorship!

Professor Dershowitz found lots of potential motives. He finds possible reasons for this conclusion for each of the five justices. O'Connor is reputed to want to retire and be replaced by another Republican judge. Having Bush be elected obviously would help. Kennedy apparently wants to be the next chief justice, and has a better chance with Bush. Thomas may want revenge against former Senator Gore's opposition to his nomination. Scalia may want to have more colleagues of his ideological persuasions be appointed. Rehnquist is described as continually meddling on behalf of Republicans in earlier decisions. Whether these motives were in play or not, many will believe that they were. That will hurt the court's credibility.

Obviously, the five justices could decide the case in whatever way they thought the law required. But they owed the rest of us a duty to follow the plain words of the law and legal precedents in the Anglo-Saxon tradition. They did not meet this test. Whether you wanted one candidate or the other to be elected, you were robbed by this decision.

Since these justices are still sitting, Professor Dershowitz argues that the problem can only be solved by appointing better justices who know the law and behave in the ways that Supreme Court justices have done for over 200 years. I agree. Whether you are an Independent, a Republican or a Democrat, I hope you will, too.

We need fairness in the Supreme Court more than anywhere else. What's more, we need the appearance of fairness just as much!

The first problem relates to his analysis of whether or not the Florida Supreme Court, through its actions, had violated the Equal Protection Clause of the 14th Amendment. Indeed this is where Dershowitz breathes most of his fire. Dershowitz repeatedly informs us that there was no violation of the Equal Protection Clause by the Florida Supreme Court and that the wicked, villainous, biased, partisan "5-person majority" was wrong to conclude otherwise. Over and over again, he talks about the awful "5 justices" and he devotes a full chapter on the "inconsistency of the majority justices". Well there's one slight problem here. On the key issue of whether or not there was a violation of the Equal Protection Clause, there was not a 5-person majority, but a 7-person majority--a huge difference. Justices Souter and Breyer AGREED with the 5-person majority on this issue (The 5-person majority was on the issue of the remedy only, not whether or not the Florida Court had acted unconstitutionally.) However, to admit that almost the entire Court (and not just a bare majority) disagreed with his analysis would seriously undermine Dershowitz's entire argument, at least as to the bias and partisanship of the "5", so he basically sweeps that little fact under the rug.

How does he sweep this under the rug? First by mentioning it only ONE time in the entire book, on page 56. Look at the index and you'll see that Souter and Breyer are hardly mentioned at all. Second, when he does allude to their vote, it is in such a convoluted fashion that it is almost comical. Rather than simply telling us that 7 justices concluded that there was an Equal Protection violation by the Forida Court, he first tells us that 5 justices (that magic number 5) reached such a conclusion and also that the same 5 held that there could be no recount on a timely basis. He then tells us that 4 dissenters disagreed with the second part of the analysis, but that two of the four dissenters dissented from the dissenters on the first part of the analysis!!! And bear in mind, this is the ONLY time in the whole book that Dershowitz even mentions the fact that it was really a 7-2 majority on this issue and not a 5-4 majority. I am convinced that if one were not a lawyer or had not read the Supreme Court opinion carefully, they would have blown right through this poorly written paragraph (and the rest of the book) without ever realizing that 7 justices found an Equal Protection violation and not just 5. And this difference is obviously significant, given that his whole point is not just that the wicked 5 were wrong, but that they were being intellectually dishonest and partisan at the same time.

The second flaw I found with the book relates to what he calls the "shoe on the other foot" test, which he alludes to periodically. This is fact should be the real topic of th book. I believe that the pull of one's political beliefs is extremely powerful and affects a person's worldview on issues which are not directly political in nature. For example, take the Clinton impeachment. On its face, the issue was simply: Should Clinton have been impeached for the acts he committed? On its face, that is solely a legal, and perhaps a moral and ethical issue, as well. The same is true, I believe, of the Bush v. Gore election battle. The opinions of the vast majority of Americans closely followed their political affiliations even though--again in theory--that should have nothing to do with one's views on the Supreme Court decision or the Florida decision. In fact, I strongly believe that this rule extended to the Supreme Court justices themselves even though the (correct) point is made that this is exactly what should not happen.

Enter Professor Dershowitz. He tells us that he is a Democrat "who sometimes votes for Republicans". Though Professor Dershowitz--like all of us looks at the world through that particular prism, just as I do and just as we all do. There is nothing inherently the matter with that, except when we get to the shoe on the other foot test.

First of all, while he lovingly describes the "inconsistency of the majority justices" he never once finds the time to tell us that the minority justices were inconsistent as well. It is generally accepted that in most cases, the conservative justices champion state's rights over federal rights, while the liberal justices generally go the other way. Of course Bush v. Gore required the wicked 5 conservative justices to flip-flop on this issue. Fine, but how come we are never informed that the minority flip-flopped as well? And does anyone really believe that when, say, Justice Ginsburg pulls the lever in the ballot box, that she ever votes Republican? Please.

And therein lies the problem. There is no doubt in my mind that if all of the facts had been reversed, then all of the debaters on BOTH sides would be making the exact opposite arguments, including Dershowitz himself. Of course, we will obviously never know for sure, but for those Democrats who say "Not me! I would have would have strongly criticized the Supreme Court opinion even if it meant arguing for Bush's election", I say [no]. It is absolutely astonishing to me how Dershowitz repeatedly speculates that the wicked 5 would fail the foot on the other shoe test, but it barely seems to even occur to him whether the minority 4 (or 2) would also fail the same test. THIS is intellectual dishonesty.

Significantly however, on at least two occasions Dershowitz does mention the fact that we may ALL fail the "shoe on the other foot test". The first is on pp. 119-120, where he tells us that when he asks the audiences in his speeches for a show of hands as to how many people believe that all of the justices on both the U.S. Supreme Court and the Florida Supreme Court would pass the test, "not a single hand went up." And again on p. 172, he tells us that some people believe that all the judges and justices would fail the shoe on the other foot test.

And that, I believe, should be the real topic of this book. If his primary message had been how ALL of us--including the judges--fail that test, that would be a fair message and one worthy of serious discussion. However to spend 99.9% book of the book talking about how the conservative justices only failed the test--while not discussing at all the more important issue of whether all the justices would fail the test--is a real disservice to his readers.