2003-09-01: Supreme Injustice

Supreme Injustice

How the High Court Hijacked Election 2000 (2001)

by Alan M. Dershowitz (1938-)

Dershowitz is certainly not an unbiased observer, having participated with the Gore legal team. Nonetheless, his book raises important questions, and if his answers are plausible, then others ought to refute them. If he is right, the grand American experiment in popular government has already failed. The fact simply hasn’t been recognized.

Dershowitz describes the background to the Bush v. Gore case, and its resolution by the Supreme Court. As he summarizes it:

It agreed to review one aspect of the initial decision of the Florida Supreme Court, which had ordered the manual recount to continue and which extended the deadline for certifying the election by twelve days.

It vacated that decision and sent the case back to the Florida Supreme Court for clarification regarding the grounds of its decision.

It stayed the Florida Supreme Court’s second decision, which had mandated a statewide recount of all undervotes and had ordered certain votes not counted by the machines but identified in the hand count to be included in the final certification.

It agreed to review that decision on its merits.

It reversed that decision and permanently stopped all hand counting of undervotes, thereby ending the election in favor of George W. Bush.

Dershowitz describes the details of these actions, and the specifics of the opinions of the majority (Rehnquist, O’Connor, Kennedy, Scalia, Thomas). He then describes how the previous judicial actions and opinions of the majority are inconsistent with their actions in this case. He makes a troubling circumstantial case that all five justices made the decision for personal reasons of preference for Bush, in violation of their oaths of office. If he is correct, the Supreme Court is as corrupt as the rest of our government. And unlike the other branches, there is no way to vote out incumbent justices.

After making his case, he addresses the question of why should Americans care.

If a majority of the Supreme Court acted corruptly, then all Americans, regardless of whom they voted for in the election or what they think about its eventual outcome, should be outraged and concerned. They should be outraged because an institution many of them trusted to be above politics has violated that trust. They should be concerned because the institution that generally serves as the last barrier to tyranny has become complicit in corruption. When the courts become corrupted, the road to tyranny becomes more accessible. A nation with an independent judiciary is less subject to the will of a dictator or the whims of a transient majority impatient with the rights of minorities. A nation whose highest court cannot be trusted in challenging situations is a nation whose liberty is at greater risk.

All Americans should look beyond the short-term effects of this decision and their own political preferences and toward the long-term impact of the majority’s corrupt action on our system of checks and balances. Today’s targets of the Court’s corruption were Gore and those who voted for him, but tomorrows targets may well include some who applauded the Bush victory. A morally weakened Supreme Court poses a danger to all Americans who care deeply about the Constitution and the liberties it protects. The danger may not manifest itself in the immediate future, but a morally strong Supreme Court serves as an insurance policy against unpredictable yet inevitable threats to liberty over time. Just because these threats do not appear imminent does not mitigate the ultimate dangers resulting from the loss of moral capital sustained by the high court.

It is remarkable that Dershowitz wrote during 2001, before the massive assault on civil liberties unleashed by Bush’s administration in the wake of the September 11 terrorist attack. As far as I know, none of these erosions of liberty has been tested before the Supreme Court. Before reading this book, I thought it would be a good thing to have such a test. Now I am doubtful.


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