HPPUB BOOK REVIEW of Supreme Injustice

 

Author (or Editor): Dershowitz,  Alan M. 

Title: Supreme Injustice: How the High Court Hijacked Election 2000;

Fiction? Anthology?  

Publisher:  Oxford University Press

Date: 2001

ISBN:  ISBN 0-19-514827-4

 

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Physical description: hardbound

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Bookish and charismatic Harvard Law Professor Alan Dershowitz got this book to press quickly after the Bush v. Gore election debacle, albeit with a British publisher (essentially). Dershowitz has authored numerous other books about the law, such as Reasonable Doubts (about the O. J. Simpson case) and The Genesis of Justice, about the Biblical roots of modern law.  

 

From the title we can discern his topic sentence.  The Supreme Court set up a Catch-22 (stopping recounts authorized by the Florida Supreme Court) in order to guarantee that George W. Bush would win the presidency in this extra-inning game.  Essentially the Bush victory was like a baseball game where the visiting team squeaks across a run in the top of the 20th inning and the home team is not allowed to come to bat.  This wasn’t even a fair “sudden death” as in the NFL. 

 

Dershowitz accuses the court of what amounts to conflict of interest and judicial fraud.  For example, Sandra Day O’Connor is rumored to have whined that she couldn’t “retire” during the time (Election night) that it appeared that Gore might win. Had the shoe been on the other foot, the Court, he believes, would not have intervened.  The likelihood of a real constitutional crisis in January 2001 was really remote.  So the public confidence in the Supreme Court may have been tarnished for years to come.

 

As for the election itself, it might well be that Bush would have prevailed in the legally contested recounts. However, Dershowitz maintains that the butterfly ballot problem in Palm Beach County might well have cost Gore the election, even though there was admittedly little legal basis to overturn it.  I personally find it hard to believe that this ballot was found to be so confusing.  It is ironic that it was designed by a Democrat, in response to the presence of many parties (including the Libertarian Party) on the ballot. It is also arguable that there were big problems with the proper counting (and even appearance at the polls) in other large urban counties with poor populations, 

 

Dershowitz says relatively little about Ruth Bader Ginsburg’s famous dissent, and her cogent attack on the whole safe harbor question. Instead, like a mathematics professor analyzing a topology problem, he dissects the opinions of the majority justices, and shows subtle logical inconsistencies with their previous conservative positions, particularly with respect to their “equal protection trap,  the gambit that caught the Florida Supreme Court with a pyrrhic pawn grab, leading it into an ideological checkmate. A major legal controversy revolves around Article II, and whether the Florida court had the full power to “interpret” the Florida legislature when dealing speicifcally with presidential elections. Dershowitz’s writing is detailed, posing conjectures and analyzing them in detail but staying well within a continuous flow, almost as if extending a historical narrative.  This is not a popular writing style but one that I used myself for Do Ask, Do Tell.

 

Another point that receives little attention is that, given the closeness of the vote, the Florida legislature could probably have appointed the Bush electors anyway. Again, as we know from Article II and other sources, there is no such thing as a constitutional right to vote for president, only that once a state grants such a right (in choosing electors) it may not do so in a discriminatory manner. 

 

Dershowitz offers some side commentary on the appropriate role of the judiciary.  When there is a public moral consensus on an issue, as was the case in the 50s and 60s with desegregation, it is appropriate for the Court to so rule.  On areas where the public is divided on “moral vision,” Dershowitz (generally viewed as a liberal) takes the conservative position that the people should continue fighting out these issues in the legislatures.  The abortion debate, for example, hinges upon one’s definition of when human life begins, and this cannot be changed by experience (any more than can, say, the Axiom of Choice).  Dershowitz argues that Roe v. Wade (1973) would eventually energize the socially conservative movement (the “moral majority”) of the 1980s, while the “progressive” side on the part of female reproductive choice remained lazy as to fund-raising and political activism, depending on the courts.  (Dershowitz feels that a purely political battle would have otherwise settled for pro-choice.)  A similar situation now exists for gays in the military, where the constitutional case to strike it down is dubious but where gradually the public and especially corporate America may be waking up to the need to change the policy, finally, through social and political pressure on the military (and Congress).

 

 

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