Thursday, April 14, 2011

Dershowitz - Supreme Injustice

Dershowitz, Alan M. Supreme Injustice: How the High Court Hijacked Election 2000. Oxford: New York, 2001.

Bush v. Gore marked the low point in the history of the Supreme Court measured against the ideal of a nonpartisan branch of government. Dershowitz goes through the legal analysis of the case, reiterating again and again to his most damning point: that the justices would not have decided the same way if the roles of the two candidates had been reversed. Also repeated: the ruling was inconsistent with previous rulings by the justices.

Importantly, Dershowitz suggests motives for the 5 majority justices.

Nov 18 - The Florida Supreme Court decided to prevent Sec State of FL Kathleen Harris from certifying the election until it heard Gore's case for the merits of making a hand recount.
Nov 21 - Fl supreme court ordered to count all ballots that reflected the clear intent of the voter.
After this - Republicans went to site of counting in Miami-Dade and intimidated the counters into stopping.
Nov 24 - The Supreme Court shocked most experts by agreeing to hear the case, appealed by Bush's team.
Nov 26 - Harris certifies Bush as the winner. Bush's legal team almost withdraws case, but decides to go forward.
Dec 3 - Supreme Court unanimously vacates the Fl SC Nov 21 decision, asking it to clarify its opinion. Argument: state legislature has right to determine how electors are chosen, and the SC may have given too much weight to the constitution in its interpretation. (Dershowitz: Fl SC had done what all courts have done for centuries in resolving conflict between two statutes.)
Dec 8 - Fl Court followed implicit advice, clarifying the standards employed by the Legislature.
Dec 9 - US SC ruled that the court actually DID have the power to impose a standard for the recount, but since they didn't they violated the equal-protection standard, thus causing irreparable harm to Bush and the nation. The counting was stopped even before hearing argument.

Nitty Gritty
Significant Firsts
-Presidential election decided by a Supreme Court
-Vast majority of law experts and observers, across the spectrum, agreed that the majority decision was bad constitutional law, and motivated by improper considerations.

The case was about the overall recount, not about specific voting problems in Florida, although Dershowitz discusses:
-The Butterfly Ballots of Palm Beach County
-The flaws (up to 5% inaccuracy) of the Votomatic machine - the punch ballot reader. Dershowitz notes that every machine recount comes up with different numbers.

Gore's camp's strategy was to "Count all the votes," which they tried to stick to because it helped their public image, although they focused extra-hard on counting the votes that would presumably favor Gore.


O'Connor - Wanted a Bush victory so she could retire and thus assure a conservative replacement. (Note: in the aftermath of the debacle, as Dershowitz predicted, she waited until 2005 to retire to thus rebuild her legacy.)
Kennedy - The swing-vote in this court, Kennedy was hoping to be named chief justice when Rehnquist stepped down, as he would be expected to do under a Republican President. He would have little chance of being promoted by a Democratic President because of his ties to Reagan.
Thomas - Reliably right wing, and bitter at the Democrats for the Anita Hill hearings.
Scalia - Most ideological and opinionated of all the justices, but Dershowitz (admitting to liking him personally) found it hard to believe he would be motivated by personal factors (while others called for him to recuse himself). Scalia abandoned principle for a partisan decision (to Dershowitz's disappointment).
Rehnquist - "No one I know seriously considered the possibility that Rehnquist had an open mind in this case." He wanted to retire, and he has always been a partisan.

No comments:

Post a Comment