Posner v. Dershowitz

...First, the foray into this area was totally unnecessary to his chosen task...

...The surmise draws support from Posner's arch observation, complete with one of his excessively used exclamation points, at the conclusion of his regression business: "The reader may be dizzy with all these different regression equations ! " And really for naught—or less than naught...

...Posner essentially abandons the usual grounds for supporting Supreme Court decisions—the justification in legal texts, principles, precedents, and related guides that are the stuff of legal briefs and presentations...

...Its opinions are authoritative texts and binding precedents...

...Supreme Court, however well or poorly it broke the deadlock, had found no need to review the state election law questions, almost never a matter within its jurisdiction...

...Second, and I add this while sparing you the details of what is a side issue, I think Dershowitz' better researched and argued view is superior to Posner's on this subject...

...To make sure the reader has no doubt about his meaning, Dershowitz writes: "Let me be as clear as I can...

...My surmise, based on some spotty education of my own (provided by my now departed cherished friend, Hans Zeisel, for years Posner's colleague on the University of Chicago law faculty), is that most readers will have drifted foggily past all this...

...But when the actual performance of that role is perceived even by many of its defenders as a product of political bias rather than judicial principle, it is no answer to applaud the result as a happy alternative to an imagined threat of "national disaster...

...In Supreme Injustice (Oxford, 275 pp., $25.00) Dershowitz declares: The "lawless decision" of the Five "may be ranked as 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...

...why Justices O'Connor and Kennedy did not join the concurrence...

...Averting a national crisis...

...When I came to the end of Dershowitz' book I once again, only a little more seriously, wished the author had left something out...

...As it happened, I read Posner's book first...

...Moving up to a level bound to be arcane for his average reader, Posner tells us, "Further light is cast on the issue of who 'really' won...

...Three of the five Justices in the per curiam majority (Rehnquist, Scalia and Thomas) joined in a separate opinion by the Chief Justice stating another ground for the result favoring Bush...

...The fact that nothing like this analysis played a role in the Supreme Court majority decision is worth noticing...

...I am accusing them of partisan favoritism—bias—toward one litigant and against another...

...TRASHING THE FLORIDA SUPREME COURT...

...Most of the second half of Dershowitz' book is devoted to arguing that the majority opinion was "not simply wrong," not simply the result of "incompetence," though that would surely be bad enough, but the result of a failure to do its duty "because of malice aforethought...

...Because we expect a consistency in these matters that is a core quality of principle—not the "foolish" sort of consistency Emerson ridiculed, but the kind of fundamental generality that is inherent in moral integrity—it may be seen as a surprise (or to his hostile critics as evidence of cynicism) that Justice Scalia signed on to an opinion warning against thinking it applicable to any but the "present circumstances...

...ordain and establish...

...Alan, whom I disclose and dare to say I count as arespected friend, is by my lights correct when he asserts that the majority in Bush v. Gore made serious errors of law (to put it mildly...

...The more one thinks about this argument, the less one thinks of it...

...The road not taken...

...But I was led to reinforced skepticism about the book jacket's boast that Judge Posner "offers an alternative justification for the Supreme Court's decision...

...But I'm suggesting in addition that his attack on the Florida Supreme Court is questionable in terms of seemliness when we remember that, although he writes as might any author under the First Amendment, he is a judge of a Federal "inferior court" in a coordinate system...

...Well, it appears that the Judge, despite his unquestioned brilliance, is subject to some of the frailties that afflict us all...

...He is as bright and productive as his 30 or so books, scores of articles, and respected judicial opinions attest...

...Dershowitz' charges called for a second reading...

...And, viewing the two books as a Posner-Dershowitz debate, I found Dershowitz coming out ahead pretty steadily...

...Saturday, even in daytime, still has a slightly sinister sound in connection with an attempted Republican coup...

...Saving the worst on this topic for last, I suggest that the most objectionable aspect of Posner's defense of the per curiam is that his crisis-averting theory distorts the Constitution...

...Speaking for the Court, the signers of the per curiam tell us that their opinion must not be viewed as a governing precedent for the future because they were resolving, just for today, issues involving "many complexities...

...Two stronger reasons come to mind for regretting that Posner did not hold off as a Florida law expert...

...Marvin E. Frankel, a former law professor and Federal District Judge, is a practicing attorney in Manhattan...

...Nevertheless, there is a deprecating approach to legal doctrine in Posner that perhaps leads him to worry less than other judges do about the qualities of universality and shared commitment that go with respect for the principled uses of precedent...

...But then he joins in demonstrating that people tend to become overwrought while considering the case...

...He devotes some 15 pages to casting this "further light," and at least one reader found it made no progress toward any useful goal for the book...

...Supreme Court had not seen fit to stop the music altogether...

...I was not led to think the case of the Five is suitable for submission to a grand jury, although it is reported that at least one state bar association has proposed that they be "impeached" for their per curiam handiwork...

...In Breaking the Deadlock (Princeton, 264 pp., $24.95) Posner finds: It is not "persuasive" on the stated ground of "equal protection" given by this majority, a group not regularly moved by that phrase...

...Heating to his subject, he contends thattheFloridajustices"thoughtthemselves at liberty to strongarm the election statute...

...It was joined in by Chief Justice William H. Rehnquist and Justices Antonin Scalia, Sandra Day O'Connor, Anthony M. Kennedy, and Clarence Thomas, but issuedper curiam ("by the Court," with no named author taking credit or blame...

...They did not so much as pretend to formulate the legal commandments by which they were standing between the nation and threatened disaster...

...These limitations do not restrict Judge Posner as a nonjudicial writer on anything...

...Let's examine some of the principal claims and counterclaims, especially those that brought Posner lower on my second look...

...Moreover, the Court is expected to offer guidance and validation for what it does as a matter of logic, justice and institutional legitimacy...

...But invoking the same First Amendment, one wishes he had found it agreeable to contain his wisdom where it was not needed, useful, or particularly qualified...

...A likely alternative, he says, would have been "chaos, providing a practical argument in defense of the Court's remedy...

...a kind of roughjustice" though it may not "have been legal justice as well...

...Passages that had made me slow down in the initial reading brought me now to something more like full stops...

...When he says "corrupt," Dershowitz makes plain, he means that in the portentous sense of "villainous" and "wicked" to the point of criminal wrongdoing...

...Judge Posner misspends a lot of his pages denouncing the decision of the Florida Supreme Court that was reversed in the per curiam of Saturday, December 12, 2000...

...But not to much avail, I regret to say...

...His learning, wit and sprightly turns of phrase, if not always his judgment and detached balance, come through in Breaking the Deadlock...

...It should not be supposed that Judge Posner's pragmatism, emphasized throughout his book, would prompt him to exclude Scalia's description of a central Supreme Court function (any more than my own disagreements with Posner entail abandonment of the pragmatism I presume to share with him...

...Whether or not that is too broad a speculation, I find nothing like the apparent comfort Posner evidently derives from his conclusion that the Five "wrought...

...To Dershowitz the concurrence is plainly wrong, and I think he is right once more...

...Its principal function is to establishprecedent—that is, to set forth principles of law that every court in America must follow...

...I am not limiting my criticism [of the majority] merely to the intellectual or precedential weaknesses of their argument...

...That may not have precluded any role for the Court in Bush v. Gore...

...And what of Alan Dershowitz, who has received far less than equal attention in what I've said up to now...

...But he essentially ignores it in applauding Bush v. Gore because he finds its weakness as a matter of constitutional law outweighed by the "roughjustice" of the Court's arrogation...

...That self-description, even if there were no more (though there is more), goes a measurable way towardjustifying Dershowitz' condemnation of the decision as "lawless...

...Court of Appeals Judge Richard A. Posner and Harvard Law School professor Alan M. Dershowitz agree that the December 12,2000 decision in Bush v. Gore is indefensible as a performance of the United States Supreme Court's mandate...

...I am accusing them of dishonesty, of trying to hide their bias behind plausible legal arguments that they never would have put forward had the shoe been on the other foot...

...As Dershowitz and others have stressed, the task of breaking an electoral deadlock was placed by the Constitution in Congress, not the Supreme Court...

...He conjures with a number of recount results that appear to have been "possible" if not "certain" if the U.S...

...These criticisms are directed at the justices personally, not only at their arguments...

...Article III of the Constitution vests the Federal judicial power in "one supreme Court, and in such inferior Courts as the Congress may...

...The ominous character of Dershowitz' charge is underscored when he sets it in the context of the rare instances where judges (none on the Supreme Court) have been sentenced to prison for such hardcore crimes as bribery and perjury...

...The nation survived handily, however, and there was no serious pressure to turn future deadlocks over to the Supreme Court...

...Posner knows that, of course...

...The notion that the Supreme Court sits to do "roughjustice" is at best disagreeable, at worst a perversion...

...Without elaborating, I would simply note that much of the argument centers on the fact that a Florida statute at the heart of the issue deals literally with vote tabulation, whereas the controversy raged, as Posner says, over voter error...

...It owes us a duty of candor and leadership in expounding the law...

...by a regression analysis of the spoiled ballots in the Florida 2000 election...

...In the end, whether they make one "dizzy" or not, and whether intentionally or not, Posner's tables and statistical analyses take on the quality of a snow job...

...The two cases of deadlock in which Congress took on the job (1824, when John Quincy Adams got the nod, and 1876, when Rutherford B. Hayes was selected over Samuel J. Tilden) were times of tension, to be sure...

...His books include Faith and Freedom: Religious Liberty in America and The Grand Jury: An Institution on Trial, co-authored with Gary· P. Naftalis, which first appeared as a special issue of the NL...

...While acknowledging that there may be room for the opposing views that exist on the issue, he declares that a key decision of the Florida Supreme Court on the state's election law was "unreasonable and not merely unsound...

...Elsewhere, Posner acknowledges, even insists, that his subject calls ultimately for legal analysis...

...Dershowitz quotes aptly in this connection from a Scalia dissent in an unrelated case, with the Justice's italics nailing the point home: "The Supreme Court of the United States does not sit to announce 'unique' dispositions...

...while praising the Court for averting the chaotic consequences of an unresolved deadlock...

...Posner, naturally, believes the numerous academic and other critics who disagree with him were affected by their opposite political biases...

...Combining a good deal of conjecture with some astute manipulation of the known facts, he concludes that a fair recount would not have broken the "statistical tie" between the contestants...

...This opinion did involve an analysis of the Florida state law, and Posner finds it a "puzzle...

...To begin with, avoiding a disaster is not what the per curiam said it was doing...

...In this instance, his judgment may have been affected by the same strong conservative tendencies in him that many feel influenced five Justices of the Supreme Court...

...How that might extend to book reviewers and others of even lesser significance is not a matter ofmoment...

...Irrelevant polymath...

...It is settled doctrine that no Federal court has the power to review state court decisions on questions of state law (e.g., Florida's election statues), and only the U.S...

...Instead, the bare rightward majority wrote, we should not even try to find in its opinion any broad principles at all: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities...

...That's a shocker...

...So it is evident that the divergence between our two authors is a matter of greater moment than your standard vituperation in the academy...

...Dershowitz, who refrains, creditably, from speculating as to what would have happened if the Supreme Court Five had not blocked the process, stays on the legal target and usually comes out ahead when the issues of law are canvassed...

...Diffidence rarely marks his style...

...Why does Posner seems to be so steadily wrong on the points at issue in what I have framed as a debate...

...His main reason for approving what the per curiam has wrought is that the country faced a potential crisis and the Five rescued us from that...

...As he elaborates these thoughts, he turns out to be saying that the motivations of the Justices in the majority were so wrongful that it is appropriate to draw on analogies from the criminal law to prove his case...

...the U.S...

...The analogy, apart from its ugliness, does not enhance Posner's stand on the Florida statute...

...To support his point that "Voter error is not tabulator error," he poses a rhetorical question: "If you put a steel bar into a meat grinder and hamburger meat doesn't come out, do you call this an error by the meat grinder...

...His criticism of Florida's highest court is based on a ground least fitting for him: his judgment that it got the state's law wrong...

...There is nothing diffident about Posner's statement of this position...

...What Posner says here may well be erroneous as legal analysis...

...Judge Posner is awesomely learned and prolific...

...Insofar as the Five paid heed to this key aspect of their role, it came by way of an express disclaimer of fulfillment...

...One questions whether Posner would (or should) have been confirmed as a Federal appellate judge, including years as Chief Judge of the Seventh Circuit (where he performed, by the way, with widely recognized distinction), if he promised only "roughjustice" and not necessarily the dubious something he calls merely "legal justice...

...That heady passage quite outruns the evidence, as do others like it...

...Supreme Court may review state court decisions even on questions of Federal law...