Massachusetts Law Review

Book Review

Bush v. Gore: Judging the Judges

Supreme Injustice: How the High Court Hijacked Election 2000, by Alan M. Dershowitz (Oxford, 2001), xii, 275 pages.

Breaking the Deadlock: The 2000 Election, the Constitution and the Courts, by Richard A. Posner (Princeton University Press, 2001), xvi, 266 pages.

Too Close to Call, by Jeffrey Toobin (Random House, 2001), xxi, 297 pages.

The Votes that Counted: How the Court Decided the 2000 Presidential Election, by Howard Gillman (The University of Chicago Press, 2001), xxiv, 301 pages.

"No matther whether th' constitution follows
th' flag or not, th' supreme coort follows th'
iliction returns."
1

"Here, then, is an attempt to induce a court of
equity to stop an election. . . ."2

On Dec. 8, 2000, the Republican candidate for president, George W. Bush, who had been declared the winner of the popular vote in the state of Florida, asked the Supreme Court of the United States to stay the recounting of ballots that the losing candidate, Albert Gore, Jr., had sought under state law. On Dec. 9, 2000, the Court granted the request by a 5-4 majority and ordered Florida to stop the recount of votes cast in Florida in the presidential election. Because the Court ordered it, Florida stopped counting votes. No guns or marshals had to enforce the order. By mid-afternoon on Dec. 9, vote counters across the state downed tools and went home. They did so because they accepted the Court's order as a legitimate exercise of moral authority in the conduct of the country's business, even though the Court divided 5-4 on its grant. No opinion of the Court accompanied the order. Justice Stevens dissented, joined by Justices Souter, Ginsburg and Breyer. Justice Scalia concurred.

The Court styled its order as a "stay."3 In fact, it operated as a preliminary mandatory injunction, in force pending disposition of the case after oral argument the following Monday, Dec. 11. Although a stay order is not unusual, the Scalia concurrence recognized that the tests that courts apply before issuing or denying preliminary injunctions guided the majority's disposition of the Bush request that the Court stop the votes from being counted. Those criteria include the probability of Bush's success on the merits and the likelihood of his incurring irreparable harm should the Court deny relief.4 On such findings, a court may exercise its authority to maintain the status quo while it considers the merits. Justice Scalia found the tests of success and harm met; the Stevens dissent concluded that Bush had satisfied neither criterion.5 The order, however, did not maintain the status quo, i.e., the counting of votes, but changed it by stopping the recount.

As is often the case in litigation, the Court's exercise of its discretion in granting preliminary relief decided the case. The final decision of Dec. 12, 2000,6 confirmed the divisions that the Dec. 9 order revealed, and exposed the Court to an immense array of critical comment, most of it focusing on accusations that the majority did not apply the law but voted their personal political preferences. Countless books and articles have praised, condemned, dissected, and satirized the decision. Few, however, seem to have attended to the salient fact that when the Court on Dec. 9, 2000, without argument from the parties, ordered the sovereign state of Florida to stop what it was doing, the state did so at once.7 The Court's moral authority carried the day.

It sometimes happens that, when an institution like the Court asserts its moral authority, the very assertion may lay an axe to the roots of that authority, unless the institution can justify the exercise on the basis of principles that the subjects of the order accept.8 This review reflects, first, on how four "historians" of Bush v. Gore want history to remember the granting of the stay, and, second, on the impact that the Court's preliminary decision may have on the moral authority that alone made dozens of Floridians put down their pencils on Dec. 9, 2000, abandon the hanging chads and the butterfly ballots and leave the election of the next president of the United States to the nine justices of the Supreme Court.

I.

When, in 1936, the Court moved from its quarters in the basement of the Capitol to its monumental temple behind the Capitol, the change was more than geographical. "The Supreme Court's [original] meager physical space [in the Capitol], later described by the building's architect, Benjamin Latrobe, as 'meanly furnished' and 'very inconvenient,' suggested the Court's lowly status É. [and was] embarrassingly inferior to the accommodations for the president and Congress."9 Moving to its magnificent new home marked the Court's emergence as a recognized equal branch, at least on the architectural front. Pedimented and columned, the building has an ecclesiastical aura, suitable, perhaps, for occupants who wear the contemporary version of the black robes of clerks in holy orders. Inside the courtroom, the churchliness continues. A prayer opens each session; the justices sit altarwards on chairs raised above the congregation; silence prevails except for converse between counsel and Court. We rise as the justices enter and leave. No television cameras desecrate the proceedings. After the arguments, the justices repair to a private zone of silence where they meditate, and mediate, results that produce the sacred texts that litigants live by and professors interpret.

It is easy to mock the architectural pomp, the clothes, the prayers, the solemnity and the rituals that are the outward and visible signs of the Court's presence. From the days of the Delphic Oracle, however, societies have adopted precisely these kinds of signs as the context within which the guardians of the law develop and assert the moral authority that they exercise to preserve peace among citizens. For reasons that philosophers have debated for centuries, getting people to stop doing something because it is, or may be, "against the law" depends on the authority that people ascribe to those giving the orders. That ascription seems to mandate that the buildings, clothes and rituals that surround those who give the orders be sufficiently out of the ordinary that they create an aura of awe or mystery. The real source of the Court's authority, of course, has nothing to do with the building it sits in or the clothes that the justices wear. It has everything to do with the Court's application of received principles of law in ways that society accepts as legitimate and free of private interest. The grant of the Bush v. Gore stay tested that authority more than any other action of the Court in recent memory. For some, it was the worst threat to the Court's integrity in its history.

On Dec. 9, 2000, the full apparatus was in place. The justices conferred privately. The stay was issued. The only hints of what the justices may have discussed come in the Scalia concurrence and the Stevens dissent. Five justices elected to exercise their discretion and grant the stay; four opposed. As in so much of the Court's recent work, the decision divided the five "conservative" judges from their "moderate" or "liberal" colleagues. Whatever the stereotypical labels that may apply, however, they should not conceal the several factors that unite the nine as judges.

As Linda Greenhouse has pointed out, the nearly universal background of the justices as lower appellate court judges has changed not only the composition of the present Court from its historical antecedents, but the definition, as well, of its function in the constitutional scheme.10 All of the justices except Chief Justice Rehnquist are former judges of other courts. Justice O'Connor was a state trial and appellate judge. The remaining seven justices were judges of the United States Court of Appeals: Justices Souter (who also served in the New Hampshire state courts) and Breyer from the First Circuit; Justice Stevens, the Seventh Circuit; Justice Kennedy, the Ninth Circuit; and Justices Scalia, Thomas and Ginsburg, the District of Columbia Circuit. None has served in Congress. Only Justice O'Connor seems ever to have run for elective office, as an Arizona state senator. Justices Ginsburg, Kennedy, Scalia and Breyer moved to the Court of Appeals after lengthy employment as professors of law. Justices Souter and Thomas had brief experience in private practice before becoming employees of state or federal agencies prior to their judicial appointments. Except for Justice Stevens, who turned 50 the year of his appointment to the Seventh Circuit following a career in public and private practice, all of the other justices were first appointed to their judicial posts in their 30s and 40s.11 Thus, by Dec. 9, 2000, the Court comprised two women and seven men who had spent major parts of their professional lives as appellate judges with lifetime tenure whose work was public only when they appeared on the bench and in the Supreme Court Reports and whose lives were far removed from the rough-edged political and public world from which so many of their greatest predecessors, starting with Chief Justice Marshall, had come.

As Senior Judge John T. Noonan, Jr., of the Ninth Circuit, writes, "the life experience of each [Supreme Court] judge" is a prime indicator of how a judge will act on the bench.12 When a justice's "life experience" has been subject for so long to the cloistral restraints of judicial existence, a certain sense of self-infallibility may develop. Hence, in Greenhouse's compelling phrase, the "Triumph of Discord" in the Court may be the result of its having evolved into a kind of judicial alumni association whose members, by virtue of their long judicial careers, are not much experienced in the art of compromise. Nevertheless, "[t]he great tides and currents which engulf the rest of men do not turn aside in their course, and pass the judges by."13 On Dec. 9, 2000, the justices chose not to turn aside from the great dispute in Florida. They jumped right in.

II.

Out of the hundreds of books and articles on Bush v. Gore, four illustrate a variety of approaches to the case. History is not mere chronology. Historians, professional and otherwise, cannot escape the burden of interpreting events, a process that implicates the writer's own experience, disposition, and philosophy. Those who write the history of events want to shape the public memory of those events, often ascribing meanings to them that serve the writer's own political, ideological or other purpose.14 Our four authors certainly come from different places and have different purposes. They engage in different literary genres but their effort is the same: to write the history of Bush v. Gore. How they deal with the Dec. 9 stay reveals their "take" on that event, and its consequences for the Court.

The books' titles are most evocative. Professor Dershowitz's title, Supreme Injustice,15 for example, carries the subtitle "How the High Court Hijacked Election 2000" and has as its epigraph these desperate lines from W. H. Auden's "Law Like Love":

Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more,
Law has gone away.
16

The title and the epigraph leave no doubt of Dershowitz's opinion of Bush v. Gore, and of the five justices who delivered the stay. In his view, they are no better than "highjackers,"17 if not murderers, of the Court's moral authority. The book falls into the literary genre known as polemic, a term whose root is polemos, the Greek word for war. Bitingly, and fueled by a nearly Swiftian saeva indignatio, the book more than indicts the five justices, it declares war on them. Dershowitz clerked for Justice Goldberg and holds the Court in awe:

[the Court's] enormous power has always been viewed as legitimate because of the unique status of the justices as transcending partisan politics, eschewing personal advantage and pronouncing the enduring constitutional values of our nation.18

Dershowitz accurately describes the apolitical ideal to which the Court ought to aspire, but, as a scholar, he knows that the Court on occasion has not "always" met that high standard. Nevertheless, in his view, no previous occupants of that bench have fallen so far:

five partisan judges have caused many Americans to question each of the assumptions undergirding the special status accorded these nine robed human beings. Bush v. Gore showed them to be little difference [sic] from ordinary politicians. Their votes reflected not any enduring constitutional values rooted in the precedents of the ages, but rather the partisan quest for immediate political victory. In so voting, they shamed themselves and the Court on which they serve, and they defiled their places in history.19

Of the Dec. 9 stay order, Dershowitz writes that, "[o]f all the judicial decisions rendered in this case, none was more surprising and controversial than the 5-4 ruling to stop the counting even before hearing argument."20 He contrasts that stay with the Court's refusal of stays in capital cases, where the denial sends the applicant to execution. Death, of course, is the ultimate harm. Dershowitz finds it inexplicable that a Court that regularly denies stays in death cases should find irreparable harm in the continued counting of ballots by hand.21 Thus, it is hard to fault Dershowitz's conclusion that

[t]he crucial point is that at the time they ruled [on Dec. 9], the justices had absolutely no idea which way the counting would have come out. Indeed, their finding of "irreparable harm" suggests that they anticipated the real possibility, if not probability, that Gore would have gotten more votes. . . .22

How Dershowitz wants history to remember the stay is unmistakable: "the [five] justices were so determined to ensure a Republican victory that they engineered a short-term resolution locking in that victory - at the risk of considerable long-term costs to the Bush presidency and the credibility of the Supreme Court."23

If Dershowitz writes a polemic, then Judge Posner's book24 is, in classical terms, an apologia, not in the sense of acknowledging regret for giving offense, but offering a defense of oneself or others.25 Posner thus strenuously defends the issuance of the stay as a superb example of the "pragmatism"26 that courts ought to employ to resolve disputes. In sum, Posner views the Court, at least when it faces high-profile issues, as a sort of elevated crisis manager that knows what is best for the country without regard to the shackles that precedent or mere jurisdictional limits would impose on its actions.

Like Dershowitz, Posner finds few subjects of public interest unworthy of published comment. His book on Bush v. Gore was one of the earliest contenders on the scene, and, like Dershowitz, he tells his story in his title, Breaking the Deadlock. While Dershowitz's highjacking metaphor may seem excessive, it goes to the heart of his argument: the stay order did not so much steal an election as steal from the Court its right to claim moral authority. Posner's choice of "deadlock" as his controlling trope, however, rests on a false premise. A "deadlock" is a "complete standstill or lack of progress."27 Posner assumes an "election deadlock"28 but the facts are opposite. No deadlock had occurred in Florida; far from being at a standstill, the counting of ballots was in full progress before the Court put a stop to it. From that false premise, Posner moves to a false analogy: "all this [the Florida election dispute] was reminiscent of the Clinton-Lewinsky scandal and its aftermath, about which I had written a book that could, I decided, serve as a model for a study of the election deadlock and its aftermath."29

Posner never explains how the Clinton impeachment trial offers a single insight into the use by the Court of its extraordinary equity powers. Rather than an explanation for the connection, Posner offers only an assertion, namely that both events were political crises that showed the "indispensability of pragmatism to the resolution of tumultuous, law-saturated public issues."30

Posner's discussion of the stay comes late in the book, after his lengthy analysis of the Court's final decision, and concentrates mostly on the balance-of-harm test.31 He defends the stay on the basis of hypotheses and assumptions, unsupported by facts, that for him demonstrate the stay as a "realistic"32 disposition, especially when, as he seems to say, (as does Dershowitz) that the justices had made up their minds on the merits before the case was heard.33 Thus, that which shocks Dershowitz (a Court making up its mind before hearing the case) comforts Posner, who palliates the finding of harm by reference to Bush's likely success on the merits. The shock and the comfort, however, derive from the authors' fundamentally different concepts of what courts are and do.

Though defending the stay, Posner nevertheless writes that "Justice Scalia was . . . ill advised to go public with his ground for voting for the stay . . . [which] he did not defend . . . effectively. . . ."34 Curiously, the apologist for the stay finds its official defender ineffective in its defense. It may be that this nearly throw-away line in Posner's book says more about the stay than anything else that Posner offers to support it. In Posner's lexicon, failure to defend the stay effectively may well be a soft way of saying that the ground of harm on which Justice Scalia relied, the possibly adverse consequence to Bush of the counting of votes, was really indefensible. He leaves no doubt, however, that he wants history to remember the majority's action as a high judicial achievement.

Jeffrey Toobin's book, Too Close to Call,35 is a page-turner. Unlike Dershowitz and Posner, he writes for an audience not impressed by the mountains of footnotes and the "scholarly" apparatus of their productions. Toobin also unabashedly favors Gore, and treats the stay in novelistic fashion. He captures what must have been a weekend of intense activity at the Court and turns it into high drama and low. Chief Justice Rehnquist emerges as the chief villain, with Justices Scalia and Thomas his willing allies. In Toobin's recital, a sub-plot follows Justice O'Connor from the Court to two glamorous parties at the homes of a "wealthy [Washington] couple"36 and of the "widow of a prominent diplomat."37 Amid the candles and cocktails, alert ears catch the justice condemning some reported Gore tactics and hear her husband say that she is "very disappointed because she was hoping to retire," which she could only do "with a Republican president to appoint her successor."38 After planting these gossipy seeds, Toobin piously declines to identify "O'Connor's ultimate motivation" for agreeing to the stay, "whether principled and judicial or craven and political."39 The book leaves no doubt, however, where on that spectrum he locates Justice O'Connor.

Shifting the scene from the machinations of the cabal, Toobin takes us to the camp of the "moderate-to-liberal quartet. . . . [ Justices Stevens, Souter, Ginsburg and Breyer and finds them] stunned, shell-shocked by the determination of their colleagues. . . . [L]ike the Gore campaign as a whole [they] misread the intensity of feelings that this election had prompted."40 Allying the dissenters with "the Gore campaign" is a telling touch. Nevertheless, for all the screenplay approach, Toobin clearly, and effectively, wants history to remember that the issuance of the stay grew from the soil of base motives, and that when it came down, mid-afternoon on Dec. 9, "the election was finally over."41 And it was.

Professor Howard Gillman's The Votes That Counted 42 is the most measured and least partisan of the four books. A scholar of the Constitution and the Court, he writes of the stay (and the final opinion) with a certain detachment. In addition to a detailed historical relation of events, he analyzes the Niagara of contemporary and post-decision commentary on the case. He tries to understand and give the benefit of the doubt to Justice Scalia's justification for the order, but concludes, more in sorrow than in anger, that "[i]n the end, after all the talk of law and high political principle, we are left simply with the raw power of an unrestrained conservative majority intent on making sure that it would decide which votes counted - and which votes would not be counted."43

Unlike Dershowitz and Toobin, Gillman concludes that Bush v. Gore, in all its particulars including the stay, "is likely to be a relatively harmless self-inflicted wound,"44 merely "a rare example of low politics within the Marble Temple."45 Gillman's cautious estimate of the long-term impact of the stay and the then inevitable final decision does not seem to depend on any partisan, Bush-favoring impulse on his own part. Rather, his conclusion may be another "triumph of hope over experience."46 History may not be as forgiving.

Critiquing the four books, and betting on how future ages will remember events, is easy. Judging the justices themselves, and attempting to measure the impact, if any, of the stay on the Court's moral authority is much more difficult. Will Gillman be proved right in his view that that impact may be minute and its importance lost in the welter of work that the Court will continue to perform to general satisfaction? Perhaps, as Posner writes, history's verdict will depend on the success or failure of the Bush administration in the public's mind, thus showing that public approval of judicial pragmatism will depend, as the decision seems to have done, on political factors.47 Dershowitz would like to see a massive public outpouring of rage to get the Court back on course, but that seems unlikely to occur. In the face of Sept. 11, debates about the niceties of how to measure degrees of irreparable harm may not send citizens to the barricades. Perhaps, if Toobin is any kind of a prophet, the significance of the case will merely be its adaptability to cheap melodrama: a cowering four crushed by a triumphalist five, doing whatever it takes to get their man elected.

The justices themselves, as Gillman relates, moved swiftly to explain themselves, though not through opinions and decisions. Rather, both judicial sides took to the hustings and were unanimous in one thing: their divided decisions had nothing to do with their political opinions on who should be elected.48 That effort showed just how conscious at least some of the justices were of the peril to the Court's authority of a perception that the result was purely partisan. When an institution feels obliged to deny the obvious, and assert that it is acting only in accord with high principle, it acts in a way that feeds the very doubts that the institutional decision created.

III.

"With one stark exception," Gillman writes, the several courts, state and federal, involved in the Florida debacle avoided "partisan decision-making."49 Where the exception to that conclusion is the Supreme Court of the United States, the ultimate arbiter of rights under our political system, that Court's moral authority stands in grave jeopardy. Out of the squads of judges who spent much of November and December 2000 adjudicating state and federal election law, Gillman concludes,

[t]he five justices in the Bush v. Gore majority are thus the only judges involved in this election dispute who fall uniquely within the category that is most indicative of partisan justice: they made a decision that was consistent with their political preferences but inconsistent with precedent and inconsistent with what would have been predicted given their views in other cases.50

In its final opinion, the Court wrote that "[o]ur consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."51 Justice Scalia's disdain for confined-to-the-facts decisions is well known. For example, in United States v. Virginia,52 he wrote: "The Supreme Court of the United States does not sit to announce 'unique' dispositions. Its principal function is to establish precedent - that is, to set forth principles of law that every court in America must follow."53

Confining a decision to its "unique" facts, as Justice Scalia then notes, can be a cover for actions that impair the principled basis of the court's moral authority: "it is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its Members' personal view . . . can impose its own favored social and economic dispositions nationwide.54

Nevertheless, with Justice Scalia's concurrence to the stay order its only stated support, the Court majority indeed acted uniquely in issuing the order. The order did not continue the status quo, but changed it. It contorted the balance-of-harm test for preliminary relief to achieve its predetermined end: the elimination of a threat to a Bush electoral college victory that a continued counting of the ballots could have presented. In the long run, that misuse of the Court's equity powers may have greater consequences than the actual outcome of the case.

IV.

In 1867, Congress enacted the "Reconstruction Acts"55 to repair the political and other casualties of the late war. The nation was in the midst of an immense crisis concerning the re-establishment of the Union. Among other provisions, the Acts mandated that the rebel states, including Georgia, register voters free of racial distinctions and conduct local elections. Georgia sued the Secretary of War and other federal officials charged with implementing the Acts, seeking, among other forms of relief, an order enjoining the respondents "[f]rom holding, or causing to be held within the State, any such election, or elections, or causing to be made any return of any such elections for the purpose of ascertaining the result of the same. . . ."56

"Here, then," the Attorney General of the United States argued in moving to dismiss, "is an attempt to induce a court of equity to stop an election, - a political election; - to prevent the registration of voters by a decree of a court of equity before any registration is made. . . . [W]ho has heard that it was the function of a court of equity to stop an election?"57

The Supreme Court granted the motion to dismiss, noting that "[t]he distinction between judicial and political power is so generally acknowledged in the jurisprudence . . . of this country, that we need do no more than refer to some of the authorities on the subject. They are all in one direction."58 That direction is unambiguous. Because Georgia called "for the judgment of the court upon political questions, and, upon rights, not of persons or property, but of a political character,"59 the Court lacked jurisdiction to enjoin the elections. Georgia v. Stanton, of course, differs in many respects from Bush v. Gore, but the Georgia Court's attention to precedent, jurisdiction, and the separation of powers contrasts sharply with the Bush majority's willingness not only to ignore long-standing precedent but to depart from its own repeated expressions of respect for the sovereignty of states. Those manifestations of what Gillman calls the majority's "insincerity"60 of reasoning have left the Court's moral authority wounded. Recovering from that wound will be a major task of Chief Justice Rehnquist's successor. President Bush is thought to favor Justice Scalia for the post.61

Robert J. Muldoon, Jr.

Robert Muldoon is a lawyer with Sherin and Lodgen LLP, Boston, and acknowledges with thanks the assistance of the firm's librarian, Scott B. Armstrong, and legal interns Erin Fitch and Matthew Hefferan of Northeastern University School of Law.

1. Finley Peter Dunne, The Supreme Court's Decisions, in Mr. Dooley's Opinions (R.H. Russell 1901), quoted in Bartlett's Familiar Quotations 645 (17th ed. 2002).[back]

2. Georgia v. Stanton, 73 U.S. (6 Wall.) 50, 59 (1867) (Remarks of United States Attorney General Stanbery).[back]

3. Bush v. Gore, 531 U.S. 1046 (2000).[back]

4. Id. at 1046 (Scalia, J., concurring).[back]

5. Id. at 1047-48 (Stevens, J., dissenting).[back]

6. Bush v. Gore, 531 U.S. 98 (2000).[back]

7. Justice Breyer's dissent from the final opinion saw the significance of the stay in its first two sentences: "The Court was wrong to take this case. It was wrong to grant a stay." Id. at 144 (Breyer, J., dissenting).[back]

8. See, e.g., Donald Cozzens, Sacred Silence 148 (2002): "If Andrew Greeley and others are correct, nothing so weakened the credibility and moral authority of the papacy É as Paul VI's 1968 encyclical Humanae Vitae É. affirming an absolute ban on all forms of birth control save the rhythm method."[back]

9. James F. Simon, What Kind of Nation 138 (2002). The Court sat in the basement of the Capitol from 1801 to 1860. From then until moving to its own building in 1936, it sat in the modestly more ornate Old Senate Chamber. [back]

10. Linda Greenhouse, Ideas & Trends: Impolitic; The Separation of Justice and State, N.Y. Times, July 1, 2001, § 4, at D1; see also Ideas & Trends: Divided They Stand; The High Court and the Triumph of Discord, N.Y. Times, July 15, 2001, § 4, at D1.[back]

11. See generally "The Supreme Court" 3 ff in 2 Almanac of the Federal Judiciary (Aspen Law & Business 2003).[back]

12. John T. Noonan, Jr., Narrowing the Nation's Power 8 (2002).[back]

13. Benjamin N. Cardozo, The Nature of the Judicial Process 168 (Yale Univ. Press 1971) (1921).[back]

14. The locus classicus is Thomas More's The History of Richard III, which, some claim, created the myth of the crippled, prince-murdering villain to support Tudor legitimacy. See, e.g., Richard Marius, Thomas More, 108-115, (1984) for a brief review of the debate. (Marius concludes that Richard was every bit as bad as More pictures him, but discussion continues.)[back]

15. Alan M. Dershowitz, Supreme Injustice (2001).[back]

16. W.H. Auden, Law Like Love, in The Collected Poetry of W.H. Auden 74,75 (1945).[back]

17. Dershowitz, supra note 15, at 11-12.[back]

18. Id. at 4. Dershowitz indulges in rhetorical exaggeration here. Political partisanship on the Court is no new thing: "Once the Sedition Act was passed . . . Federalist judges at the highest level - members of the Supreme Court . . . engaged in the official process of stifling criticism of the Adams administration. Their blatantly partisan actions . . . reinforced . . . profound distrust of the federal judiciary. . . ." Simon, supra note 9, at 53.[back]

19. Dershowitz, supra note 15, at 4.[back]

20. Id. at 46.[back]

21. Id. at 48.[back]

22. Id. at 51.[back]

23. Id. at 52.[back]

24. Richard A. Posner, Breaking the Deadlock (2001).[back]

25. Oxford Concise Dictionary 43 (6th ed. 1976).[back]

26. Posner, supra note 24, at viii.[back]

27. Oxford Concise Dictionary, supra note 25, at 261.[back]

28. Posner, supra note 24, at viii.[back]

29. Id. at viii.[back]

30. Id.[back]

31. See id. at 163 ff.[back]

32. Id. at 163. Posner's fundamental erroneous assumption is that the Supreme Court is a sort of Platonic guardian, unfettered by technicalities: "what exactly is the Supreme Court good for if it refuses to examine a likely constitutional error that if uncorrected may engender a national crisis? É It is not an ordinary court É." Id. at 162. Posner's belief that the Court exists as the constitutional crisis-manager rests on nothing in the Constitution, but reflects his own apparent belief that the judicial branch of government is the supreme branch.[back]

33. See id. at 165.[back]

34. Id. at 166-67.[back]

35. Jeffrey Toobin, Too Close to Call (2001).[back]

36. Id. at 248.[back]

37. Id. at 249.[back]

38. Id.[back]

39. Id.[back]

40. Id.[back]

41. Id. at 251.[back]

42. Howard Gillman, The Votes That Counted (2001).[back]

43. Id. at 196.[back]

44. Id. at 199.[back]

45. Id. at 202.[back]

46. Christopher Hibbert, The Personal History of Samuel Johnson 99 (1971). Dr. Johnson was referring to certain second marriages.[back]

47. Posner, supra note 24, at 222.[back]

48. Gillman, supra note 42, at 172-3.[back]

49. Id. at 205.[back]

50. Id. at 189 (footnote omitted). An example of the five's "insincerity," is "their strongly held beliefs in other cases about the importance of limiting federal intrusion into traditional state practices." Id. at 187.[back]

51. Bush v. Gore, 531 U.S. 98, 109.[back]

52. 518 U.S. 515 (1996).[back]

53. Id. at 596 (Scalia, J., dissenting).[back]

54. Id. at 601 (Scalia, J., dissenting) (emphasis added).[back]

55. Act of March 2, 1867, ch. 153, 14 Stat. 428; Act of March 23, 1867, ch. 6, 15 Stat. 2; Act of July 19, 1867, ch. 30, 15 Stat. 14.[back]

56. Georgia v. Stanton, 73 U.S. (6 Wall.) 50, 53 (1867).[back]

57. Id. at 59.[back]

58. Id. at 71 (emphasis added).[back]

59. Id. at 77.[back]

60. Gillman, supra note 42, at 187.[back]

61. Id. at 200.[back]

©2014 Massachusetts Bar Association