The day after five U.S. Supreme Court justices locked up the election for George W. Bush, Justice Clarence Thomas brushed aside the notion that politics might have influenced the court. “Don’t try to apply the rules of the political world to this institution,” he pleaded. “I have yet to hear any discussion, in nine years, of partisan politics … among the members of the court.” Referring to critics who think justices “appointed by certain presidents maybe hang out together,” Thomas insisted, “That doesn’t happen.”
Thomas was wrong in both fact and theory. The justices do share ideological biases and partisan loyalties. They have worked in political jobs. They socialize with each other and with politicians on whose political acts and careers they sit in judgment. That doesn’t mean they’re corrupt. Like other jurists in the recount saga—Judge Charles Burton of Palm Beach County, Judge Sanders Sauls of Leon County, Justice Charles Wells of the Florida Supreme Court—the justices of the U.S. Supreme Court pride themselves on reason, fairness, and honesty. So do journalists who have covered the story. But one rule of the political world applies to us all. No matter how seldom we discuss partisan politics, our work is shaped by the subtle bias of selective scrutiny.
The justices who stopped the recount are hardly apolitical. Chief Justice William Rehnquist was a Republican poll monitor and an official in President Nixon’s Justice Department. Justice Sandra Day O’Connor used to be the Republican leader of the Arizona state Senate. Newsweek reports that at an Election Night party, she called the news that Al Gore had won Florida ” terrible.” Her husband explained that she wanted to retire but would have to wait four more years so a Republican president could replace her. Justice Thomas worked for a decade in the Reagan administration. While he prepared for Bush v. Gore, his wife collected résumés for a George W. Bush administration. According to the Washington Post, “Dick Cheney joined Supreme Court Justices Antonin Scalia and Anthony M. Kennedy” at a Christmas party hosted by a former Republican senator a day after Scalia and Kennedy cleared Cheney’s path to the vice presidency.
Did these political affiliations influence the court? Of course. The justices who ruled for Bush didn’t conspire, lie, or rubber-stamp the decision. The scrutiny they applied to Bush v. Gore was as sharp as ever. They simply reserved that scrutiny for one side of the case. In oral argument, Scalia and Rehnquist fired their skeptical questions at Gore attorney David Boies, while Justices John Paul Stevens and Ruth Bader Ginsburg fired their skeptical questions at Bush attorney Theodore Olson.
Why the selective interrogation? Because each justice approached the case from the standpoint of the candidate with whom he or she sympathized. Either way, Bush v. Gore was going to cost one candidate the election. Republican justices concentrated on the threat to Bush. Democratic justices concentrated on the threat to Gore. Granting Bush’s initial request to halt the recount, Scalia wrote, “The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner [Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.” This spectacularly one-sided statement was matched by Stevens’ equally one-sided dissent: “Counting every legally cast vote cannot constitute irreparable harm. On the other hand, there is a danger that a stay may cause irreparable harm to the respondents [Gore].” Each justice was blind to the opposing candidate’s predicament.
The subsequent briefs, oral argument, and deliberations did nothing to reconcile these dueling preoccupations. The court’s majority opinion devotes its criticism to the proposed statewide manual recount defended by Gore, deeming it
inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances. … The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. … The contest provision, as it was mandated by the State Supreme Court, is not well calculated to sustain the confidence that all citizens must have in the outcome of elections.
The dissenters, on the other hand, devote their criticism to the existing count that favored Bush. “The manual recount would itself redress a problem of unequal treatment of ballots,” Justice Stephen Breyer observes. Ginsburg adds that “we live in an imperfect world, one in which thousands of votes have not been counted. I cannot agree that the recount adopted by the Florida court, flawed as it may be, would yield a result any less fair or precise than the certification that preceded that recount.”
Neither side is lying. Each is simply telling half the truth. Indeed, as their mutual citations make clear, each assumes that the other has made the opposite case sufficiently. Political opinion magazines follow the same principle. My friends at Mother Jones figure it’s not their job to publish conservative articles. My friends at National Review figure it’s not their job to publish liberal articles. From a partisan standpoint, each magazine thinks it’s right. But from a journalistic standpoint, each counts on its adversary to tell the other side of the story.
Slate suffers, in different ways, from the same human weakness. When I came here, I encountered some of the most incisive, independent, tough-minded journalists I had ever met. Yet they had nothing critical to say about Microsoft’s side of the federal antitrust dispute. They hadn’t surrendered their skepticism; they had simply concentrated that skepticism on the case against Microsoft. Politically, while nobody at Slate toed the Democratic line in this election, most of us heartily criticized Bush. Yes, Bush deserved it. But often, so did Gore. The reason Gore got less grief than he deserved is that most of us shared his ideology. His assumptions were as invisible to us as our own.
I’d like to think that because I write about bias, I’m immune to it. But I’m not. Three months ago, I predicted that Bush would lose the election decisively. As Bush recovered and held his lead in the weeks afterward, I reread my analysis several times, looking for flaws. Everything I had written made sense and was backed up by poll numbers. After the election, I examined the faulty inferences through which I had translated an accurate account of Bush’s shortcomings into an inaccurate prediction of his defeat. I never owned up to why had I drawn those inferences: because I had formed—and still retain—a negative opinion of Bush’s maturity and wisdom, which I expected others to form as well. I had focused entirely on Bush’s flaws. But Bush didn’t have to beat a flawless opponent. He only had to beat Gore, and Gore’s flaws were larger and less exposed than I recognized. I wasn’t thinking about why swing voters might sour on Gore, any more than Justice Scalia was thinking about whether stopping the Florida recount three days before the federal deadline might cause Gore irreparable harm.
One lesson of these partisan oversights is that hypocrisy is a two-way street. My liberal friends and colleagues are happy to point out that Bush, having advocated tight standards for counting ballots in Florida counties that lean Democratic, advocated loose standards for counting military ballots, which lean Republican. They’re quick to note that the Supreme Court’s conservative justices, having opposed federal intervention in other disputes over state law, intervened to stop the recount in Florida. But if Bush and the conservative justices have switched positions in one direction, then Gore and the liberal justices have switched positions in the opposite direction. The charge of hypocrisy, leveled reflexively by each side, is itself hypocritical.
The other lesson is what they teach you in driver education: Check your blind spot. Figure out which political angle you don’t see well, whether it’s to the left or the right, and make sure to turn your head in that direction before crossing into that lane. A judge or politician who neglects this precaution risks calamity. A writer who neglects it risks embarrassment. Every day, hundreds of readers post messages on Slate’s bulletin board accusing us of prejudicial blindness. “Another biased liberal,” they write, ignoring the content of whichever article they’re responding to that day. In my case, I’m just liberal enough to hope that some of them, eventually, will get the joke.