By Miguel Martinez-Saenz

Reviewed by

Miguel Martinez-Saenz, Wittenberg University

Alan Dershowitz’s Supreme Injustice: How the High Court Hijacked Election 2000 provides a thorough, albeit at times partisan, account of the 2000 Presidential Election. Dershowitz’s analysis enables specialists and non-specialists alike to appreciate the complexity of the issues involved in determining the “real” or “legal” winner in the 2000 Presidential Election. He attempts to clarify some of the more important misunderstandings of the High Court’s decision exposing some of the implications related to judicial review. Dershowitz does little to point out, however, that ideological conflicts and partisanship are encountered in jurisprudence generally and that one could rightly question whether all of the Supreme Court Justices acted in a partisan fashion. He tries to maintain that he and the four dissenting Justices have recognized the “correct” legal interpretation in an impartial, objective, and neutral fashion. This, as one might expect, is asking too much of the process of adjudication.

Dershowitz begins by outlining the events that led to the “supreme injustice.” He explains in moderate detail the steps that led to the Supreme Court decision identifying the nuances in the Florida Supreme Courts’ decisions, Florida’s Secretary of State Katherine Harris’s interpretations of the law, and the interpretations by lower courts in Florida. He recognizes the centrality of the “equal protection clause” and provides a thorough analysis of the status and role of precedent and possible interpretations and misinterpretations of the “equal-protection clause.” He argues that the United States Supreme Court played a game of cat and mouse with the Florida Court knowing all along that the equal protection clause would be applied. As Dershowitz claims, and as Souter and Breyer point out, the equal-protection problems could have been avoided had the U.S. Supreme Court been more forthright in its original per curiam remand. Furthermore, Dershowitz provides helpful insights regarding the imperfect ballots and prior court rulings, namely, the “No.2 pencil case,” that suggests the Florida Supreme Court ruled consistently based on precedent. As a consequence, the U.S. Supreme Court’s decision to reverse the Florida Court’s decision led to an interpretation of the law that was not only inconsistent with the statute but also with precedent. The Florida Supreme Court ruled in 1998 that, although voter error led to undervotes because voters had failed to use a No. 2 pencil, the State had to count those votes. This suggests, as Dershowitz argues, that voter error does not, as the Supreme Court Majority maintained, constitute an illegal ballot.

The question of discerning intent, Dershowitz argues, is clearly delineated in the Florida Statute and, as a consequence, the Florida Supreme Court’s interpretation of the law remained clearly within the court’s purview. He points out plainly that Charles Fried, now a lawyer for the Republicans, inconsistently justified the High Court’s ruling. One must keep in mind, Dershowitz explains, that in 1996 Fried provided an argument maintaining that discerning a voter’s intention is of utmost importance because the “voters are the owners of government.” Perhaps Fried could have been lead counsel for both parties.

The Florida Supreme Court Majority was, according to Dershowitz, attempting to interpret the law recognizing both the time constraints and the potential accusation that awaited them. They did provide the correct interpretation of the law. The court should always attempt to make clear that its decisions are based on principles, not on compromises due to social and political pressures. According to Dershowitz, while Breyer, Souter, Ginsburg, and Stevens are able to make this claim, Scalia, Thomas, O’Connor, Rehnquist, and Kennedy cannot. Like Charles Fried, Dershowitz argues that the U.S. Supreme Court Majority would have argued differently, though never impartially, if Gore had been in Bush’s position.

As Dershowitz contends, the High Court Majority would not have stopped the hand count had Gore been ahead. Recognizing the difficulty of demonstrating judicial impropriety, Dershowitz levels an ad hominem attack that provides the background impetus for his legal analysis. As he mentions, “no one denies that there are also legal principles that would justify the opposite result.” What Dershowitz is not questioning is whether the Majority provided a justification for their position, something all or most skilled judges can provide, but whether they provided, in good conscience, the correct interpretation and one consistent with their previous opinions.

Dershowitz shows that the majority judges were inconsistent in their application of the equal protection clause and their interpretation of Article II. Furthermore, he points out that while most legal experts could have predicted that Scalia and Thomas, recognized by Bush as “ideal justices” just months earlier, would “support” Bush, they could not have predicted that O’Connor and Kennedy would have sided with the majority. As a consequence, Dershowitz builds a substantial case against O’Connor and Kennedy showing why O’Connor may have been affected by her desire to retire and why Kennedy may have been affected by his hopes to be appointed Chief Justice.

As the 2000 Presidential campaigns made clear, the issue of Supreme Court appointments was central to this election. As a consequence, one has to contemplate how O’Connor’s retirement and Rehnquist’s potential retirement, at a minimum, could have affected the High Court’s decision. As Dershowitz considers, we should reevaluate how we choose our justices. No one, not even Dershowitz, is suggesting this is or would be an easy task. One of the issues to consider, however, is whether a substantial change can ensure that we do not encounter another sullied presidential election.

Dershowitz goes to great length to show how political motives undermined the courts’ ability to be “objective.” One must wonder whether any of the justices involved were behaving in an impartial manner. Clearly, legal decisions can have significant political implications. While the 2000 election controversy seems to be an exception, we can certainly point to other cases that are equally relevant. Forexample,DredScottv.Sanford,Marburyv.Madison,Brownv.BoardofEducation,Roev.Wadeare a few landmark cases where the United States Supreme Court rendered legal decisions with serious political implications. We should not try to undermine the courts, in this case, the U.S. Supreme Court. I am suggesting that we should recognize that legal neutrality, impartiality, and objectivity are part of a legal mentality that misleads the American public. More importantly perhaps, it is idealistic and unachievable, especially in court cases where the parties involved–this includes justices–have so much at stake. Although some academics called for recusal, we should ask: “who’s to say any of the justices would have been left standing?” Ideological conflicts and partisanship are encountered in jurisprudence. Courts and justices do have substantive positions regarding the purpose of the law. The issue is that judges do not always agree what the purpose of the law is or should be. As Richard Posner has argued, for example, the Majority justices had to make a pragmatic decision recognizing that time constraints forced them to decide the purpose of election laws and the intent of the Founding Fathers.

Dershowitz’s analysis is valuable, instructive and forces us to reflect genuinely on the 2000 Presidential Election. While he seems to argue that the five justices in question took generous leeway interpreting the laws and applying and recognizing precedent, Dershowitz demonstrates quite clearly why the American public and “cynical academics” continue to argue that adjudicative neutrality and issues of impartiality are not only disingenuous but should be made transparent. Dershowitz builds a case against Scalia, Thomas, Rehnquist, O’Connor and Kennedy. While some will be prone to agree with Dershowitz, it seems that Dershowitz spins the events in ways that favor his position. Isn’t this what good lawyers are supposed to do? If he is trying to argue that legal decisions are not, for the most part, ethical and political decisions, but in this case the legal interpretation is clearly motivated by political considerations, then one might be required to consider whether Dershowitz’s analysis is an interpretive analysis also tainted by his political affiliations or whether he provides an objective analysis that clearly and demonstratively identifies the wrongdoing by the Supreme Court Justices in question.

Miguel Martinez-Saenz

Miguel Martinez-Saenz teaches courses in critical thinking, logic, philosophy of law, Latin American philosophy and the ethics of economic development at Wittenberg University. While his research interests lay primarily in areas connected with Latin American Philosophy as it relates most specifically to issues of economic development, he has worked on and presented papers on a wide range of topics from Roberto Mangabeira Unger’s social theory to a critical analysis of the UNDP’s Human Development Report. He is currently involved with the Warder Literacy Center in Springfield, Ohio. Miguel earned his Masters and Ph.D. degrees in Philosophy from the University of South Florida.