Author (or Editor): Dershowitz, Alan M. |
Title: Supreme Injustice: How the High Court Hijacked Election 2000; |
Fiction? Anthology? |
Publisher: |
Date: 2001 |
ISBN: ISBN
0-19-514827-4 |
Series Name: |
Physical description: hardbound |
Relevance to HPPUB: |
Review: Bookish and charismatic Harvard Law Professor Alan Dershowitz got this book to press quickly after the Bush
v. Gore election debacle, albeit with a British publisher (essentially). Dershowitz has authored numerous other books about the
law, such as Reasonable Doubts (about the O. J. Simpson case) and The
Genesis of Justice, about the Biblical roots of modern law. From the title we can discern his topic sentence. The Supreme Court set up a Catch-22
(stopping recounts authorized by the Florida Supreme Court) in order to
guarantee that George W. Bush would win the presidency in this extra-inning
game. Essentially the Bush victory was
like a baseball game where the visiting team squeaks across a run in the top
of the 20th inning and the home team is not allowed to come to
bat. This wasn’t even a fair “sudden
death” as in the NFL. Dershowitz accuses the court of
what amounts to conflict of interest and judicial fraud. For example, Sandra Day O’Connor is rumored
to have whined that she couldn’t “retire” during the time (Election night)
that it appeared that Gore might win. Had the shoe been on the other foot,
the Court, he believes, would not have intervened. The likelihood of a real constitutional
crisis in January 2001 was really remote.
So the public confidence in the Supreme Court may have been tarnished
for years to come. As for the election itself, it might well be that Bush
would have prevailed in the legally contested recounts. However, Dershowitz maintains that the butterfly ballot problem in
Dershowitz says relatively
little about Ruth Bader Ginsburg’s famous dissent, and her cogent attack on
the whole safe harbor question. Instead, like a mathematics professor
analyzing a topology problem, he dissects the opinions of the majority
justices, and shows subtle logical inconsistencies with their previous
conservative positions, particularly with respect to their “equal protection
trap,” the
gambit that caught the Florida Supreme Court with a pyrrhic pawn grab,
leading it into an ideological checkmate. A major legal controversy revolves
around Article II, and whether the Another point that receives little attention is that,
given the closeness of the vote, the Dershowitz offers some side commentary on the appropriate role of the judiciary. When there is a public moral consensus on an issue, as was the case in the 50s and 60s with desegregation, it is appropriate for the Court to so rule. On areas where the public is divided on “moral vision,” Dershowitz (generally viewed as a liberal) takes the conservative position that the people should continue fighting out these issues in the legislatures. The abortion debate, for example, hinges upon one’s definition of when human life begins, and this cannot be changed by experience (any more than can, say, the Axiom of Choice). Dershowitz argues that Roe v. Wade (1973) would eventually energize the socially conservative movement (the “moral majority”) of the 1980s, while the “progressive” side on the part of female reproductive choice remained lazy as to fund-raising and political activism, depending on the courts. (Dershowitz feels that a purely political battle would have otherwise settled for pro-choice.) A similar situation now exists for gays in the military, where the constitutional case to strike it down is dubious but where gradually the public and especially corporate America may be waking up to the need to change the policy, finally, through social and political pressure on the military (and Congress). |
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