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Dershowitz, Felix Frankfurter Professor of Law at Harvard Law School,
renowned criminal-defense attorney, best-selling author, tireless
TV talking head, and pro bono lawyer for residents of Palm Beach
County who opposed Bush efforts last November to stop the initial
recounts sought by the Gore camp, has over the years taken pride
in his willingness to champion unpopular causes and to utter truths
that others dare not speak. His new book, however, (consistent with
the position he advanced in his just-concluded online debate in
Slate
with Judge Richard Posner) is a sustained tribute to the conventional
wisdom. In Supreme
Injustice: How the High Court Hijacked Election 2000, Dershowitz
sets out to show that Bush v. Gore was a "lawless
decision"; that the five conservative justices who voted for it
"shamed themselves and the Court on which they serve, and they defiled
their places in history"; and that the conservatives did so out
of motives that were "uniquely corrupt," indeed "because of malice
aforethought." Alas, the conventional wisdom is ill-served by this
quick-out-of-the-gate book, which does nothing so much as show Dershowitz's
willingness to advance grave and inflammatory charges about the
conduct of justices of the Supreme Court that he cannot support
with, indeed which require him to trample right over, fact and law.
Although he boasts of his credentials for the assignment and the
extensive research he has conducted, Dershowitz's legal analysis
breaks little new ground. He writes that "Five justices concluded
that the Florida Supreme Court had violated the equal-protection
clause of the federal Constitution when it authorized a manual recount
based on the legislative standard of clear voter intent, because
that general standard was subject to different interpretations by
different vote counters." Describing this holding as "the most perverse
misuse of the equal-protection clause I have seen in my forty years
as a lawyer," Dershowitz contends that it is based on a misunderstanding
of both Florida law and equal protection doctrine. In fact, Dershowitz
claims, Florida law requires that properly or improperly marked
ballots that cannot be read by machines be examined in the search
for "a clear indication of the intent of the voter." Moreover, far
from serving as a basis for invalidating the Florida court's manual
recount order, equal-protection considerations ought to have led
the U.S. Supreme Court to endorse it, for the ballots which the
machines in Florida were unable to count, whether as a result of
improper marking or machine malfunction, came disproportionately
from minority voters of the sort that the 14th Amendment was specifically
passed after the Civil War to protect.
Nor, to put it mildly, is Dershowitz original in alleging that the
votes of the five-member conservative majority reflected "the partisan
quest for immediate political victory." In the service of the conventional
wisdom, however, Dershowitz does go beyond it, if only in the bluntness
of his accusation, and (who would have thought it possible at this
late date) in the shrillness of his rhetoric. Bush v. Gore
was in a crucial respect worse than the Court's previous "evil,
immoral, even dangerous decisions," not excepting, in Dershowitz's
view, the court's notorious 1857 decision in Dred Scot, which
declared African Americans, as a matter of constitutional law, to
be property. "Bush v. Gore was different because the
majority justices violated their own previously declared judicial
principles — principles they still believe in and will apply
in other cases." Indeed, maintains Dershowitz, "the decision in
the Florida election case may be ranked as the single most corrupt
decision in Supreme Court history, because it is the only one that
I know of where the majority justices decided as they did because
of the personal identity and political affiliation of the litigants."
So as to erase all doubt about where he stands and why his criticism
stands out from the pack, Dershowitz trumpets the personal character
of his attack:
Let
me be as clear as I can: The criticism I am making of the majority
justices includes a significant ad hominem component. I am not limiting
my criticism merely to the intellectual or procedural weaknesses
of their arguments. I am accusing them of partisan favoritism —
bias — toward one litigant and against another. I am also accusing
them of dishonesty, of trying to hide their bias behind plausible
legal arguments that they never would have put forward had the shoe
been on the other foot. These criticisms are directed at the justices
personally, not only at their arguments, though it is the
weakness of their arguments — and their inconsistency with
prior views expressed by these very justices — that provides
the probable cause for probing their motives.
Certainly Dershowitz is clear about the gravity of his charge as
well as his own fearlessness at bringing it. Whether he makes his
case with the commensurate degree of care is another matter.
Indeed, the scandal of Dershowitz's book is that he lacks what he
himself regards as probable cause for examining the justices' motives,
because he fails to demonstrate the weakness of the conservatives'
argument. And this is not because the argument for which the five
conservatives voted in Bush v. Gore is manifestly
compelling or ultimately correct but for the simple reason that
Dershowitz never manages to perform the elementary task of accurately
identifying it.
The holding or legal principle that Dershowitz attributes to the
conservatives and which he seeks to demolish is that the Florida
supreme court violated the equal-protection clause of the 14th Amendment
by failing to articulate uniform standards to guide the statewide
manual recount. But Dershowitz has set up his wrecking ball in the
wrong place and aimed it at an imaginary structure of exaggerated
flimsiness. For what the U.S. Supreme Court actually held was that
the partial and selective statewide recount of undervotes (ballots
on which machines could not detect a vote for president) devised
by the Florida court raised no fewer than four distinct equal-protection
problems. Not only did the Florida court permit different standards,
or different interpretations of its clear intention of the voter
standard, to be applied in different counties and sometimes to different
votes in the same county. The Florida court also arbitrarily excluded
from its recount order overvotes (ballots on which machines detected
multiple votes for president and which estimates indicated far-outnumbered
undervotes). This was critical because some overvotes may have been
improperly marked or misread by machines, yet, just like undervotes,
have yielded on manual inspection a clear intention to vote for
a particular candidate. In addition, the Florida court arbitrarily
included in Gore's final total votes recovered from an unfinished
hand recount in Miami Dade County. And it called for a statewide
manual recount to be conducted by untrained and unsupervised personnel.
It was these four problems taken together — and regardless
of whether the recount ordered by the Florida Court was a legitimate
interpretation of the scheme for contesting elections established
by the legislature — which led the majority to conclude that
key features of the Florida recount "do not satisfy the minimum
requirement for non-arbitrary treatment of voters necessary to secure
the fundamental right."
Is Bush v. Gore, when rightly restated, good law?
That is a hard question. One thing is for sure. Dershowitz's polemic
impedes the quest for a sound answer by blurring facts and distorting
legal issues central to the case.
Moreover, if Dershowitz cannot be relied upon to restate accurately
the holding or legal principle set down in Bush v. Gore,
the alleged weakness of which he declares provides the probable
cause for investigating the justices' motives, why should his investigation
of motives be trusted? Especially when the proof of corrupt motives
is an inherently delicate and subtle task, and in Dershowitz's book
is built upon such questionable and easily manipulated evidence
as fragments ripped from judicial opinions, brief snippets extracted
from extended writings on judicial philosophy, and (in a university-press
book!) allegations of personal wrongdoing from unverifiable, anonymous
sources.
Supreme Injustice sheds little light on the complex issues
raised by Bush v. Gore and much that it argues is
plain wrong or dependent on ugly innuendo. But Dershowitz's lawyerly
obfuscating and moral grandstanding and professorial posturing testify
all too powerfully to a reckless disregard for the truth that has
become an increasingly common feature of the professor in his role
as public intellectual.
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