JUL 15, 2001
"Supreme Injustice: How the High Court Hijacked Election 2000"
By ALAN M. DERSHOWITZ
— Justice John Paul Stevens in his dissenting opinion in Bush
The five justices who ended Election 2000 by stopping the Florida hand recount have damaged the credibility of the U.S. Supreme Court, and their lawless decision in Bush v. Gore promises to have a more enduring impact on Americans than the outcome of the election itself. The nation has accepted the election of George W. Bush, as it must under the rule of law. It will have an opportunity to reassess this result in 2004. But 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.
The Supreme Court, which consists of only nine relatively unknown justices with small staffs, has wielded an enormous influence in the history of our nation. It is the most powerful court in the world — the envy of judges in every other country. Presidents accept its rulings, even when disagreeing. The public eventually embraces much of what the justices say in their judgments. Legislatures rarely seek to overrule their decisions. Though only one part of our delicate system of checks and balances, the high court speaks the final word on many of the most divisive and important issues of the day. This enormous power has always been viewed as legitimate because of the unique status of the justices as transcending partisan politics, eschewing personal advantage and pronouncing the enduring constitutional values of our nation. We defer to them because we respect them.
Now in one fell swoop, five partisan judges have caused many Americans to question each of the assumptions undergirding the special status accorded these nine robed human beings. Bush v. Gore showed them to be little difference from ordinary politicians. Their votes reflected not any enduring constitutional values rooted in the precedents of the ages, but rather the partisan quest for immediate political victory. In so voting, they shamed themselves and the Court on which they serve, and they defiled their places in history.
Because the Supreme Court lacks the legitimacy and accountability that come with election and the power that derives from the sword and the purse, its authority rests on public acceptance of its status as a nonpartisan arbiter of the law. This moral authority is essential to its continued effectiveness as an important guarantor of our constitutional liberties. Unless steps are taken to mitigate the damage inflicted on the Court by these five justices, the balance struck by our Constitution between popular democracy and judicial oligarchy will remain askew. Preserving this delicate balance is essential to our liberties and to our system of checks and balances. That is why I have written a book about the Supreme Court decision rather than about the election. Here I offer a critical assessment of the decision itself as well as the motivations of the justices who rendered it. I provide both direct and circumstantial evidence that some of them were motivated by partisan advantage, while others were motivated by expectation of personal gain. I explore the dangerous implications of the decision in Bush v. Gore for all Americans, regardless of party affiliation or ideology, especially since the Supreme Court — prior to this case — was among the last institutions whose integrity remained above approach. Finally, I propose steps that can be taken to avoid any repetition of this supreme injustice.
Unless steps are taken to mitigate the damage inflicted on the Court by these five justices, the balance struck by our Constitution between popular democracy and judicial oligarchy will remain askew.
The majority ruling in Bush v. Gore marked a number of significant firsts. Never before in American history has a presidential election been decided by the Supreme Court. Never before in American history have so many law professors, historians, political scientists, Supreme Court litigators, journalists who cover the high court, and other experts — at all points along the political spectrum — been in agreement that the majority decision of the court was not only "bad constitutional law" but "lawless," "illegitimate," "unprincipled," "partisan," "fraudulent," "disingenuous," and motivated by improper considerations. In addition to the remarkable expert consensus regarding this case, there is also widespread popular outrage at what the high court did. Though the level of this outrage tends to mirror party affiliation, it is safe to say that the degree of confusion over what actually happened is not limited to one party. There are millions of Americans who do not strongly identify with the Democratic Party — indeed, even some who voted for George W. Bush — but who cannot understand how five justices could determine the outcome of a presidential election. Moreover, the furor within the Supreme Court itself — among some justices and law clerks — is unprecedented in the annals of this usually harmonious institution.
In light of these factors, many Americans who believed that the Court was an institution that could be trusted to remain above partisan politics are now experiencing a genuine loss of confidence in the impartiality of the judicial branch of our government. This widespread loss of confidence, reaching to the pinnacle of our judiciary, should be the concern of all Americans, because the Supreme Court has played such a critical role in the history of our nation. Without its moral authority, we would be a less tolerant, less vibrant, and less free democracy. The high court, throughout its long and distinguished history, has helped us — not always perfectly or swiftly — through crises of institutional racism, religious intolerance, McCarthyism, systematic malapportionment, presidents who deemed themselves above the law, and governors who defied the Constitution. The Court stepped in when the other branches of government were unwilling or unable to enforce the constitutional rights of unpopular minorities. The justices were always at their greatest when they could act unanimously and on principles that could be easily justified and widely accepted. When they act in an unprincipled and partisan manner — as they did in Bush v. Gore — they risk losing respect and frittering away the moral capital accumulated by their predecessors over generations. That is what Justice Stephen Breyer was referring to when he wrote in his dissent in Bush v. Gore:
"[I]n this highly politicized political matter, the appearance of a split decision runs the risk of undermining the public's confidence in the Court itself. That confidence is a public treasure. It has been built slowly over many years... It is a vitally necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself... [We] risk a self-inflicted wound — a wound that may harm not just the Court, but the Nation."
That is why all Americans must care about this case and must derive appropriate lessons from it. The Supreme Court's moral capital will certainly be needed again in our future, and so it is a tragedy that it has been dissipated for short-term partisan gain in a case in which the Supreme Court had no proper role.
Nor is it relevant to the point of this book that had the Supreme Court not stopped the hand count, Bush might well have won — according to some accounts, by even more of a margin than the official count gave him. The Supreme Court did not know what the result of the hand count would be when it stopped it. A hijacking occurs when someone unlawfully seeks to divert a vehicle from its course. The fact that the vehicle ultimately ends up at its intended destination does not mitigate the hijacker's culpability.
This book is about the culpability of those justices who hijacked Election 2000 by distorting the law, violating their own expressed principles, and using their own robes to bring about a partisan result. I accuse them of failing what I call the shoe-on-the-other-foot test: I believe that they would not have stopped a hand recount if George W. Bush had been seeking it. This is an extremely serious charge, because deciding a case on the basis of the identity of the litigants is a fundamental violation of the judicial oath, to "administer justice without respect to persons..." In this book, I marshal the evidence in support of this charge. In a larger sense, this book is also about the Supreme Court and its continuing importance to all Americans. Its purpose is to alert the American people to a serious problem in the hope that constructive criticism can help to avoid a crisis that could endanger our liberties.