Supreme Injustice: How the High Court Hijacked Election 2000

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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.

Summary

Title: Supreme Injustice: How the High Court Hijacked Election 2000
Author: Alan M. Dershowitz
Publisher: Oxford University Press
ISBN: 0195158075

 

Book Review

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.

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 a 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?

Supreme Injustice: How the High Court Hijacked Election 2000

That isn’t the only inconsistency which appeared in the case — no, there are quite a few of them, especially with regards to the individual justices. When this decision is compared to their earlier work, it is very difficult to reconcile them with each other.

Inconsistent Justices

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.

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