Court Scrutinized for Supreme Intervention


The Supreme Court's Bush vs. Gore ruling may have brought a quick end to the disputed presidential election of 2000, but the legal battle lives on, fought out in the pages of six books coming out this year.

Most are written by law professors, who remain sharply split over whether the high court was right to halt the Florida recount.

"Constitutional law professors form a different breed, with longer memories and deeper resentments," said University of Chicago law professor Richard A. Epstein in introducing a book of 11 essays, called "The Vote: Bush, Gore and the Supreme Court."

At least a half-dozen books focusing on the Bush vs. Gore case will be out by fall, most published by university presses. While hardly classic beach-reading fare, two of the books have hit the bestseller lists this summer. And several more are due out by year's end. They will find a ready market in law schools and political science departments, some professors say.

"If you teach constitutional law, you can't avoid teaching Bush vs. Gore," said New York University law professor Richard Pildes, co-author of "When Elections Go Bad." "It's clearly one of the momentous decisions in the court's history. And students are interested in hearing about it."

Said Georgetown University law professor Mark Tushnet: "Everybody is using the case, either to talk about the role of the court or to focus on equal protection. I plan to use the University of Chicago book this fall. It's a good way to talk about the role of the court in a democracy."

Both best-selling books, one by Harvard law professor Alan M. Dershowitz and the other by former Los Angeles prosecutor Vincent Bugliosi, are scathing attacks on the court's five conservative justices--William H. Rehnquist, Antonin Scalia, Clarence Thomas, Sandra Day O'Connor and Anthony M. Kennedy--painting them as lawless and partisan.

In "Supreme Injustice," Dershowitz argues that the court's 5-4 decision to halt the Florida recount was an egregious error of a special sort. The ruling is "the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants." Had George W. Bush been the one trailing by a few hundred votes and seeking a recount, the conservative justices certainly would not have intervened to stop it, he writes.

Bugliosi is the outspoken former Los Angeles deputy district attorney best known for prosecuting cult murderer Charles Manson. More recently, he wrote in "Outrage" that O.J. Simpson got away with murder.

This year, he is calling the five conservative justices "criminals" for their decision that ended Al Gore's recount quest and effectively put Bush in the White House.

"The stark reality is that the institution Americans trust the most to protect its freedoms and principles committed one of the biggest and most serious crimes this nation has even seen--pure and simple, the theft of the presidency," Bugliosi writes in "The Betrayal of America."

On Dec. 9, the day after the Florida judges ordered a statewide hand count of the untabulated paper ballots, the Supreme Court, on a 5-4 vote, issued an emergency order to stop the counting. Late on Tuesday, Dec. 12, the court handed down an unsigned opinion ruling that, because the state had no precise standards for deciding what is a legal vote, its recount violated the Constitution's guarantee of "equal protection of the laws."

The surprising success of Dershowitz's and Bugliosi's books may signal a new publishing phenomenon. Over the last decade, the bestseller lists have regularly featured books by conservatives that pilloried various liberals--their favorite targets, Bill and Hillary Rodham Clinton, and anyone associated with them. But these new bestsellers suggest there are plenty of angry liberals willing to buy books that roast conservatives.

The academic books are more reserved in tone, and many of the law professors engaged in a type of soul-searching.

The conservative professors, while agreeing with the court's decision, admit that they had to struggle to defend its reasoning. For the liberal professors, who think the court erred, the struggle was determining the effect of its decision on the court itself and the rule of law. Was this a onetime mistake, prompted by an extraordinary sequence of events, or does it prove, as Dershowitz contends, that the Rehnquist court is an "activist, right-wing Republican court" not worthy of trust?

Harvard law professor Frank Michelman takes a middle ground in an essay titled "Suspicion." The court will remain on probation in the minds of many for its actions in December, he said. "A great many Americans suspect that a certain five justices of the Supreme Court . . . were prompted in their actions by a prior personal preference for a Bush victory," he said.

Elizabeth Garrett, a dean for academic affairs at the University of Chicago, said the high court should have followed the law and allowed politicians in the Florida Legislature and Congress to resolve the dispute. A presidential race had been deadlocked before, she pointed out.

After the disputed Hayes-Tilden election of 1876, Congress passed the Electoral Count Act, which set rules for resolving such disputes. States were given deadlines for finalizing their slates of electors, and disagreements were to be decided in the House and Senate. The law's sponsor, Sen. John Sherman, was adamant in saying that the Supreme Court should play no role.

"It would be a very grave fault indeed and a very serious objection to refer a political question in which the people of the country are aroused . . . to this great tribunal," Sherman said on the Senate floor in 1887. "It would tend to bring that court into public odium of one or the other of the two great parties."

Ironically, Sherman's law was used but his advice ignored last year. On Nov. 24, the Supreme Court cited the Electoral Count Act as its legal basis for intervening in the Florida election dispute.

The conservatives offer different defenses of the court's ruling. Epstein, a free-market conservative, said the majority's conclusion that the hand recount violated the "equal protection" clause of the Constitution is a "non-starter at best, which deserves much of the scorn that has been heaped on it." Instead, he said it was the "sorry performance" of the Florida Supreme Court that justified the Rehnquist court's action.

In "Breaking the Deadlock," Judge Richard A. Posner of Chicago, a Reagan appointee also known for his free-market conservatism, argues that the court's ruling can be best defended as a "pragmatic" decision, not a legal one. It saved the nation from a "looming political and constitutional crisis."

Because the Florida judges had "butchered" their state law to order recounts, the justices were justified in reversing them, Posner adds. "What the court wrought was a kind of rough justice."

Still another defense is offered by University of Utah law professor Michael McConnell. He says the court's equal-protection ruling was "both sensible and persuasive." There is no justification for using different standards to count legal ballots, he says.

But McConnell then argues that the high court should have allowed the hand recount to continue. "I think the decision to halt the recount was incorrect as a matter of law," he writes in an essay that first appeared in the Wall Street Journal and appears in expanded form in a University of Chicago book.

"The 5-4 split created the appearance--whether or not justified--that the Court voted its politics instead of the law," he writes.

He also faulted Bush's lawyers in Florida for resisting hand recounts. Using fair and uniform rules, Bush would have prevailed in the recount, he says. "If Bush's position had been a little more accommodating, he might have obtained a more secure mantle of leadership."

McConnell's candor was not held against him, however. When President Bush announced his first round of 11 judicial nominees in May, McConnell was there, selected to sit on the U.S. Court of Appeals in Denver.


Books on Bush vs. Gore Case

* "Bush vs. Gore: The Court Cases and the Commentary"

Edited by E.J. Dionne Jr. and William Kristol. Brookings Institution Press, Washington. A source book that includes the various court decisions and newspaper opinion pieces.

* "When Elections Go Bad: The Law of Democracy and the Presidential Election of 2000"

By Samuel Issacharoff, Pamela Karlan and Richard Pildes. Foundation Press, New York. A textbook for law classes.

* "Supreme Injustice: How the High Court Hijacked the Election"

By Alan M. Dershowitz. Oxford University Press. Bestseller.

* "The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President"

By Vincent Bugliosi. Paperback by Thunder's Mouth Press, New York. Bestseller.

* "The Vote: Bush, Gore and the Supreme Court"

Edited by Cass Sunstein and Richard A. Epstein. University of Chicago Press. Essays by 11 law professors. To be published in October.

* "Breaking the Deadlock: the 2000 Election, the Constitution, and the Courts"

By Richard A. Posner. Princeton University Press. To be published in September.

* "The Votes That Counted: How the Court Decided the 2000 Presidential Election"

By Howard Gilman. University of Chicago Press. A USC political science professor offers a step-by-step account, analysis of the Florida election dispute. To be published in October.

* "The Unfinished Election of 2000"

Edited by Jack Rakove, a Stanford University historian. Basic Books. Essays by law professors and historians. Due out this year.

* "The Longest Night: Polemics and Perspectives on Election 2000"

Edited by Arthur Jacobson and Michel Rosenfeld. University of California Press. Essays by law professors. To be published next year.

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