Supreme Injustice: How the High Court Hijacked Election 2000, by Alan M. Dershowitz. Published by Oxford University Press.

Did the United States Supreme Court cheat in its decision in the case of Bush v Gore, which ultimately led to George W. Bush's election as president of the United States? Alan Dershowitz argues "yes" to that question and offers some impressive arguments to support his case. By extensively citing the law and the justices' own records, he demonstrates that there was certainly something fishy going on.

A strong democratic society relies upon its citizens being able to adopt something of a contradictory attitude towards elections. On the one hand they have to want their candidate of choice to win - the alternative is apathy, which in the long run can be fatal. But on other hand, they have to be content if an alternative candidate wins, because overall it represents a victory for the democratic process. This process, after all, is more important than any one candidate. But it appears that in the presidential elections of 2000, the process lost.

The first key to realizing that there is a problem is by apply the "shoe on the other foot" test. We need to ask, if the shoe were on the other foot and Al Gore were trying to stop George W. Bush's efforts to do hand recounts in some Florida counties, what would have happened? Would the Supreme Court have acted the same by ordering the recounts halted and then finding that such recounts were a violation of the Equal Protection Clause of the 14th Amendment?

Dershowitz has asked that question of many people, including a great many conservatives who supported Bush's presidential election bid. Not only do they reject the possibility, but it is not uncommon for them to scoff at the idea as being absurd. When both conservatives and liberals agree that the case would have been decided differently, it is worth looking at the reasons for that agreement - after all, they don't agree in matters like this too often.

Of course, we must remember that any judicial decision may be partisan or even corrupt - Dershowitz does a good job, with a historical example, of showing how a corrupt judge can make decisions which look reasonable and are even upheld later upon appeal. If a court's opinion explains how the ruling accords with prior law, then we prefer to believe that it was the law that motivated the court and not any speculative claim of corruption.

This is certainly the case with the Florida Supreme Court's decisions in the election cases. Some conservatives claim that because their judgments were partisan, then it was okay for the US Supreme Court to render opposite and partisan decisions. But aside from the fact that two wrongs don't make a right, the FSC's decision stands in accordance both with Florida law and Florida legal precedent - something which the USSC normally defers to.

One interesting question revolves around the 'stay' issued against the hand recounting being done in Florida. What this means is, whatever the proceedings are, such as an execution or a recount, the Court has determined that irreparable harm would result if they were to continue before the Court has made its ruling. So, the actions must stop until a decision is made. It takes five members of the court to issue a stay.

In 1990, the Court was presented with the case of Hamilton v. Texas, involving a man scheduled for execution by the State of Texas. The Court decided to hear the case (a decision which requires four votes in favor). Along with the request that the Court hear the case was, of course, a request to stay the execution. But there weren't enough votes and the execution proceedings were not stopped.

So, the man was executed, and later the case was automatically dismissed because there was no longer any plaintiff. What this means is that the five justices who found that hand-recounting votes would cause George W. Bush "irreparable harm" did not also find that killing a man would cause him and his case "irreparable harm." Isn't that interesting?

But that isn't the only inconsistency which appeared in the case - no, there are quite a few of them, all detailed in the book. Justice Scalia, for example, has made the point more than once that the job of the Court is to establish binding precedents on general issues, not render unique decisions which have very limited applicability. In this case, however, he wrote that it can only have validity in this one instance and that it was not permitted that it be used as precedent for later cases.

Justice Sandra Day O'Connor, as another example, has stated quite clearly in the past that the concept of "equal protection" is primarily about race and that courts should avoid interfering with government actions when there is no clear discriminatory intent. The mere existence of a discriminatory effect, even against a particular race, is not enough, and even that minimal standard was absent in this election case. However, this did not stop her from finding that the hand recounts violated the principle of equal protection.

For Chief Justice Rehnquist, even discriminatory intent hasn't necessarily been enough to invalidate a law. Rehnquist's philosophy has always been that as long as the state has a rational basis for the law - even if Rehnquist has to imagine such a basis himself - then the law is valid. In this case, however, that principle played no role whatsoever.

Another serious problem with the decision is that, if taken seriously, it undermines the very principle of judicial review itself. Back in the case of Marbury v. Madison, the Supreme Court determined that it had the authority to decide if laws were constitutional or not. This is what made the Court the guardian of the Constitution, by ensuring that the various laws passed do not violate it.

But now, in the decision of Bush v. Gore, that has been turned on its head. According to the Court's confusing decision, because the Constitution delegates authority to the legislature to choose Electors, the courts cannot interfere in this in any way. Thus, even if the legislature decided to ban gay or Catholic Electors, the courts cannot do anything. Perhaps that is one of the reason the justices took great pains to say that their decision could not be used for further precedents. Convenient, no?

All of the above makes a valid case for the idea that the decision reached by the five justices was not based solely on legal merit. So what was the basis? This comes to the question of motives, and while it is not necessary to prove motives in order to prove wrongdoing, it is helpful. In this, Dershowitz provides possible motives for all five.

For Justice Sandra Day O'Connor, it may have been retirement plans. She publicly expressed disgust at the idea of a Gore presidency because she wanted to retire to Arizona to be with her husband, but she didn't want a Democratic president to name her successor. Justice Kennedy apparently wants to be Chief Justice when Rehnquist retires, and that is only likely with a Republican president. Justice Thomas is, according to those who know him, still infuriated at what happened during his confirmation hearings and is itching to get revenge against many of the Senators - with Gore and Lieberman among them.

So, is any of that enough to warrant a charge of wrongdoing? Absolutely - in judicial ethics, even the mere appearance of impropriety requires that a judge remove themselves from a case. It doesn't matter if the judge can honestly say that their decision was based solely on the law: the fact remains that the decision cannot be trusted and, hence, the judge has violated ethical rules.

O'Connor definitely has the appearance of having had something personally to gain from a Bush presidency, which means that she, at the very least, should have removed herself from the case. But by participating, she has negligently violated important judicial ethics (which is sadly unsurprising, because she has been warned an unprecedented two times about such violations since joining the High Court). With the other four, the case isn't quite as clear; but it is possible that at least a couple of them should have refused to participate.

Some people attempt to dismiss this book as simply a matter of "sour grapes": Dershowitz wanted Gore to win, is mad that Bush became president, and so is now attempting to disparage the victory in an effort to attack Bush. It is true that Dershowitz wanted Gore to win - he makes no attempt to hide that. But the rest of the accusation completely misses the point of the book.

Dershowitz makes it very clear that none of his arguments rely upon the idea that Gore did, in fact, get the most votes in Florida. And he is correct, because even if we assume that Bush got the most votes in Florida and would have legitimately won if the hand recounts had been allowed to proceed, none of Dershowitz's legal arguments would be affected.

And that is because they are legal arguments, not electoral arguments. The course of the election is ultimately irrelevant. What is relevant is the nature of the legal decision made: Was it consistent with prior decisions? Was it consistent with the justices' legal principles? Was it made in the absence of personal interest or gain? The answer to those questions is "no" - and because of that, the decision must be judged as bad in every sense of the word.

The five-justice majority cheated. This isn't a decision which can simply be rejected as being wrong-headed or as applying bad legal philosophy, as many might legitimately argue about other controversial decisions. No, this is a corrupt decision, because the justices violated their own legal principles and philosophies in attempt to reach a decision in which they had personal, vested interests.