Books: Campaign 2000, What Academics Think





Mr. Miller is a faculty member at the Department of Government at Clark University.

This article discusses the following books:
  • Alan M. Dershowitz, Supreme Injustice: How The High Court Hijacked Election 2000
  • Howard Gillman, The Votes That Counted: How The Court Decided The 2000 Presidential Election
  • Abner Greene, Understanding The 2000 Election: A Guide To The Legal Battles That Decided The Presidency
  • Richard A. Posner, Breaking The Deadlock: The 2000 Election, The Constitution, And The
  • Courts
  • Cass R. Sunstein and Richard A. Epstein, eds., The Vote: Bush, Gore and The Supreme Court
Just as the country was deeply divided before, during, and after the presidential election of 2000, the academic community today continues to be deeply divided when analyzing the propriety of the U. S. Supreme Court's decision in Bush v. Gore, which of course finally ended the 2000 presidential race. There are a group of recent books by various academics analyzing the judicial controversy. The four book authors covered in this review plus the chapter authors in Sunstein and Epstein's edited volume provide a wide range of academic reactions to the Supreme Court's now landmark decision. Almost all of the authors in these works are law professors or former law professors, with the notable exception of Howard Gillman, who provides an excellent qualitative political science analysis of the case and its procedural history.

The most extreme reactions to Bush v. Gore among this group of academics and judges are presented by, not surprisingly, Alan Dershowitz and Judge Richard Posner. Dershowitz's book basically offers a diatribe against the U. S. Supreme Court's conservative majority, while Posner strongly attacks the Florida Supreme Court for acting both illogically and illegally. Dershowitz's first sentence in the book sums up the whole thesis of his argument when he states,"The five justices who ended Election 2000 by stopping the Florida hand recount have damaged the credibility of the U. S. Supreme Court, and their lawless decision in Bush v. Gore promises to have a more enduring impact on Americans than the outcome of the election itself" (p. 3). In analyzing the Court's rulings, he finds no legal, historical, precedential, or practical basis for the conservative majority's decisions in Bush v. Gore, except that the five justices were acting in a blatantly partisan manner. In chapter 5, Dershowitz compares the ruling with such infamous decisions such as Scott v. Sandford (1857), Plessy v. Ferguson (1896), Korematsu v. U. S. (1944), and Bradwell v. Illinois (1873). Dershowitz concludes,"Over the years, the justices have rendered many evil, immoral, even dangerous decisions, most of which have been overturned by later courts and condemned by the verdict of history" (p. 173). He then calls for the public to pay greater attention to the section process for U. S. Supreme Court justices.

Although Dershowitz attacks the conservatives on the U. S. Supreme Court, Posner's book defends them in almost equally strident terms. Judge Posner's thesis is that,"The U. S. Supreme Court's interventions in the postelection struggle were not the outrages that its liberal critics have claimed them to be but, rather, a pragmatically defensible series of responses to a looming political and constitutional crisis" (p. ix). In very strong terms Posner attacks the various decisions of the Florida Supreme Court, agreeing with the three most conservative justices of the U. S. Supreme Court that the state justices acted in violation of Article II of the U. S. Constitution. In criticizing the Florida Supreme Court's decisions, Posner writes,"Nothing is more infuriating than changing the election rules after the outcome of the election, conducted under the existing rules, is known. That is what a banana republic might do" (p. 159). However, Posner's harshest criticism is leveled against constitutional law professors and other academics who publicly disagreed with the U. S. Supreme Court's majority. He devotes almost an entire chapter to attacking academics who disagree with his views on constitutional law. For example, Posner writes,"The precipitance and shallowness of many of these criticisms cast a shadow over constitutional law as a subject of law school teaching and research. Professors of constitutional law [today] have little command of the full range of subjects encompassed by modern constitutional law. Their reaction to a subject within that range that eludes their understanding tends to be driven by their politics rather than by their expertise." (p. 5). Generally, Posner feels the need to come to the defense of the most conservative justices on the U. S. Supreme Court, while being totally dismissive of anyone who disagrees with them. Conservatives might like the Posner book, while liberals might like the Dershowitz book. However, neither offers a balanced analysis of the U. S. Supreme Court's rulings in Bush v. Gore.

In an attempt to avoid heated rhetoric like that found in the Dershowitz and Posner books, law professor Abner Greene's book is an attempt to clarify what actually happened in all the litigation surrounding the presidential election. This book offers a simple and straightforward explanation of key terms in the litigation process, as well as the statutory and constitutional provisions at issue. It offers no real commentary on whether any of the court decisions at any level were right or wrong. Instead, it leaves all analysis of the situation to the reader. The book is a good step-by-step discussion of this complicated litigation, but it offers little to anyone already familiar with the legal concepts and the judicial opinions at issue. I do not know if the book was intended for classroom use, but I could see it being assigned as a supplementary book in a class intended for first year college students. The book might be worthwhile just for its clear and concise definitions of the terminology that all the election lawsuits produced.

The one edited volume in this group, edited by law professors Cass Sunstein and Richard Epstein, provides eleven essays written by a variety of law professors who all have different reactions to the U. S. Supreme Court decisions. Sunstein writes the introduction for the volume plus one of the eleven chapters, while Epstein writes the afterword and also another of the eleven chapters. Each chapter author takes a different slant in his or her analysis, and the collection includes both supporters and critics of the conservative majority on the U. S. Supreme Court. This book clearly offers the greatest breadth of all of the works in this group of recent books. For the most part, all the essays are thoughtful, well written, and well argued. In many ways, the volume is a very valuable, useful, and interesting collection. From a political scientist's point of view, however, it is unfortunate that only law professors authored chapters in this edited volume. Although the range of reactions presented to the Bush v. Gore decision is quite illuminating, one wonders how academics in other disciplines might differ in their analyses.

An absolutely wonderful work by political scientist Howard Gillman illustrates this point. Gillman's book is a careful and scholarly exploration of the steps that all the different courts followed in this very complicated election process. The legal arguments at all stages of the litigation are fully and thoughtfully analyzed in a very readable presentation. The work is a wonderful example of the best of qualitative political science analysis. Gillman basically argues that judges and their selection processes are inherently political, but that courts can often act above partisan politics. Courts often must interpret uncertain law, and one of the roles of courts is to give orders to governmental officials if they believe the officials are not following the rules properly. Thus Gillman is generally supportive of the actions of the Florida Supreme Court, and he gently criticizes the U. S. Supreme Court majority for making a partisan decision and for using incendiary language to do so.

In addition to a reasoned and careful step by step analysis of all the legal arguments used in various stages of the litigation, Gillman also provides quite a bit of commentary from a wide variety of academics about the courts' various decisions. Gillman cites the reactions of political scientists, law professors, and other academics at various points in the saga. He also provides useful analysis of public opinion polls taken at that time. Taken as a whole, Gillman's work is a very readable and measured institutional analysis of an extremely complex set of litigation. Gillman also raises valuable questions about the future effects of the U. S. Supreme Court's decisions. Gillman offers gentle criticism of the rulings of the conservative majority on the U. S. Supreme Court, and worries that the Court's justices" cannot resist the temptation to engage in unprincipled partisan decision-making" (p. 206). Thus, Gillman does not shy away from taking normative positions. Yet, even those who draw different normative conclusions will probably agree that this book is an example of excellent social science research and analysis.

Taken together, these five books illustrate the wide range of opinions and reactions that Bush v. Gore has generated in the academic community. All of these books are worth reading.

REFERENCE:

Rosenberg, Gerald. 1991. The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press).

CASE REFERENCES:

Bradwell V. Illinois, 83 U. S. 130 (1873).

Bush V. Gore, 531 U. S. 98 (2000).

Korematsu V. United States, 323 U. S. 214 (1944).

Plessy V. Ferguson, 163 U. S. 537 (1896).

Scott V. Sandford, 60 U. S. 393 (1857).


The above review first appeared in the Law and Politics Book Review (West Virginia University).


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Tristan Traviolia - 4/10/2002

The Florida debacle revealed the inherent inaccuracy of all twentieth century elections because of the mechanical shortcomings of the technology used to tabulate results. How could the courts at the state or federal level accomplish the impossible, establishing beyond any reasonable doubt the intentions of every questionable ballot in the state of Florida? With this certainty in mind, could either Bush or Gore claim legitimacy based on the actual vote in Florida? Given the nature of our party system could any court decision or any recount escape political insinuations? Our system has inherent flaws that demand more than partisan rhetoric.