Dear Professor Dershowitz:
You say that I “argue, quite eloquently, that Bush v. Gore can be justified by the court’s hidden agenda and secret reason of preventing a crisis.” That raises an interesting question, but before turning to it let me respond to some of your provocations: A tip is not the less anonymous because it is repeated by a journalist before being repeated by you; the journalist’s intermediation just adds another layer of hearsay. A footnote citing an anonymous tipster or leakster is a parody of scholarship. You say that I’m coming more and more to agree with your “shoe on the other foot” thesis, but at the same time you ask me whether I agree with it. I made clear in my book, as well as in our exchange, that I consider it entirely possible that had Gore been challenging a recount ordered by a state supreme court at the behest of Bush, the conservative justices would have voted against Gore. I just don’t think, for the reasons that I explained and that you haven’t addressed, that it proves those justices are (your favorite word) “corrupt.” You traffic in rumor, innuendo, and reckless charges. Do you remember the TV interviews in which, following the deadlocked election, you said that Florida’s secretary of state, Katherine Harris, was “corrupt,” “bought and paid for,” and a “crook” (CNN Breaking News, Nov. 14, 2000, 8 p.m.; Rivera Live, CNBC News Transcripts, Nov. 14, 2000; “The Florida Secretary of State: A Human Lightning Rod in a Vote-Counting Storm,” the New York Times, Nov. 20, 2000) and that four of the five justices in the Bush v. Gore majority had financial motives for supporting Bush (Good Morning America, Dec. 13, 2000)? In your latest submission you say that judges “like [me]” impose the code of omerta on their law clerks. (The implication that I have “threaten[ed] law clerks with disciplinary action if they blow the whistle on corrupt conduct by judges” is outrageous.) On the contrary, I tell my law clerks that the only thing they mustn’t discuss outside the court is a pending case. Earlier in our exchange you said that I “deliberately distorted the entire thrust” of your book and implied that as an appellate judge I “willfully distort the trial record and the case law.” You have difficulty accepting that the people you disagree with might, just might, be acting benightedly but in good faith; that Justice Scalia might not have “consciously decided to be a hypocrite.”
As to whether “Bush v. Gore can be justified by the court’s hidden agenda and secret reason of preventing a crisis”: Stated in paranoid fashion in terms of “hidden agendas” and “secret reasons,” no, it can’t be. If, however, we are proceeding analytically rather than polemically, we’ll break the question into two parts and discuss them separately. The first is how far a court is justified in allowing fear of a national crisis to influence its decision. The second is whether, if it might ever be so justified, it would forfeit its justification if it weren’t candid about it.
The first question is the more important. Students of the law differ on the extent to which pragmatic considerations are proper in adjudication. I believe that they are proper, though with qualifications. If pragmatic adjudication means ad hoc decision-making that disregards everything besides the immediately foreseeable consequences of the case at hand, I am against it. But I’m for it if it merely means bringing into the decision-making process, to the extent allowed by the conventional materials of adjudication such as text and precedent, a consideration of consequences both long term (such as the importance of predictability in law) and immediate. Law’s consequences are not “extralegal” matters that judges should ignore in accordance with the maxim ruat caelum ut fiat iustitia (let the sky fall so long as justice is done). Law should be in the service of life. Where do you think law comes from if not from practical concerns with attaining such social goals as prosperity, security, freedom, and, in Bush v. Gore, an orderly presidential succession? It would have been irresponsible for the justices of the Supreme Court not to have thought about the possibly very bad consequences (which I think you acknowledge) of allowing the election deadlock to fester indefinitely—provided there was some basis in the text of the Constitution for the court’s intervening. But there was; it was the provision in Article II that the manner in which a state’s presidential electors shall be chosen is to be determined by the state legislature, not the state judiciary.
But, to come to the second question, not only did the majority not adopt the Article II ground; the three concurring justices who did adopt it did not mention the crisis that the decision averted. You think a court’s failure to be candid about the concerns that impelled it to its decision makes the decision illegitimate. That is too severe. The rhetoric of most judges is indeed stilted, abstract, legalistic, and “professional” in a sense that tends to obscure practical concerns. As a result, candor is a scarce commodity in judicial opinions. This is unfortunate. But to suppose uncandid opinions illegitimate is to cast into the outer darkness most of the work of our appellate courts, including the decisions you admire. My experience has been that judges are more practical people than the readers of their opinions would suppose and that this is a good thing, one we shouldn’t be ashamed of. A good pragmatic opinion could have been written in Bush v. Gore; it was not; but that is no reason to call the justices crooks. Why not accept the decision for what it is and for the effect it had, without rancorous speculation about the justices’ motives?