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New Supreme Injustice
Supreme Injustice
How the High Court Hijacked Election 2000.
Alan M. Dershowitz

A very depressing read, this book spells out in painful detail just how flawed the Supreme Court decision was. But the details are quite painful in some places, the reading is rather dry and sometimes longwinded on fairly simple points. The sometimes dry, technical nature of much of this book robs it of a sense of outrage. It's a legal comdemnation, not a political tract. But this is also a strength of the book, it can't really be accused of being nothing but a partisan screed, it's far to detailed and technical for any such accusation to hold.

The author clearly does know the law well, documenting point by point both how the courts decision twists the law and how the authors of that decision abandoned their normal legal standards to get there. The book lays out the background the of the decision and the chain of events that lead to it, but only in relation to this one decision. The book is by no means a discussion of the flaws of the Florida election in general, matters unrelated to the Supreme Court ruling are mentioned in passing if at all.
The book does have one chapter dedicated to discussing the long term implications of the decision, and how we ended up in this mess. The author actually traces this decision back to Row vs Wade, an intersting posistion that I don't entirly agree with but he does draw some important conections between them and the impact that decision had on the courts actions.

Overall, I give this a 3 out of 5. It's just too dry in some places to be really enjoyable. If you want a technical understanding, then this may be the book for you but if don't expect light reading.

Jay
New have zero respect for the author while agreeing with his
opinions on that particular opinion. I still remember him jabbing at the impeachment comittee when some ahole judge insisted that the president was more important than a basketball coach so the law didnt apply equally. What the USSC did was partisan, but legal. He is very onesided himself with the same willingness to prejuidice himself for "HIS" side to the point of ridicule.
thanx,
bill
why did god give us a talleywhacker and a trigger finger if he didnt want us to use them?
Randy Wayne White
New Don't want to recycle a huge thread but...
I don't see how the US SC could have done things much differently.

It seems to me they were put in a bad situation by the events in FL and the FL SC decisions. The FL state law, IIRC, was that the rules couldn't be changed after the election yet a good case could be made that that's what the FL SC did (though a good case could be made that they didn't as well).

Is the biggest beef you have with the US SC the fact that they ended the recount? The order with Stevens' dissent and Scalia's concurring opinion is [link|http://a257.g.akamaitech.net/7/257/2422/14mar20010800/frwebgate.access.gpo.gov/supremecourt/00-949x.fdf|here] (PDF).

Scalia wrote:
The issue is not, as the dissent puts it, whether "[c]ounting every legally cast vote ca[n] constitute irreparable harm." One of the principal issues in the appeal we have accepted is precisely whether the votes that have been ordered to be counted are, under a reasonable interpretation of Florida law, "legally cast vote[s]." The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and th the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires. Another issue in the case, moreover, is the propriety, indeed the constitutionality, of letting the standard for determinination of voters' intent -- dimpled chads, hanging chads, etc. -- vary from county to county, as the Florida Supreme Court opinion, as interpreted by the Circuit Court, permits. If petitioner is correct that counting in this fashion is unlawful, permitting the count to proceed on that erroneous basis will prevent an accurate recount from being conducted on a proper basis later, since it is generally agreed that each manual recount produces a degradation of the ballots, which renders a subsequent recount inaccurate.


Stevens wrote:
To stop the counting of legal votes, the majority today departs from three venerable rules of judicial restraint that have guided the Court throughout its history. On questions of state law, we have consistently respected the opinions of the highest courts of the States. On questions whose resolution is committed at least in large measure to another branch of the Federal Government, we have con-strued our own jurisdiction narrowly and exercised it cautiously. On federal constitutional questions that were not fairly presented to the court whose judgment is being reviewed, we have prudently declined to express an opinion. The majority has acted unwisely.

Time does not permit a full discussion of the merits. It is clear, however, that a stay should not be granted unless an applicant makes a substantial showing of a likelihood of irreparable harm. In this case, applicants have failed to carry that heavy burden. 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\ufffdand, more importantly, the public at large\ufffdbecause of the risk that \ufffdthe entry of the stay would be tantamount to a decision on the merits in favor of the applicants.\ufffd National Socialist Party of America v. Skokie, 434 U. S. 1327, 1328 (1977) (STEVENS, J., in chambers). Preventing the recount from being completed will inevitably cast a cloud on the legitimacy of the election.

It is certainly not clear that the Florida decision violated federal law. The Florida Code provides elaborate procedures for ensuring that every eligible voter has a full and fair opportunity to cast a ballot and that every ballot so cast is counted. See, e.g., Fla. Stat. \ufffd\ufffd 101.5614(5), 102.166 (2000). In fact, the statutory provision relating to damaged and defective ballots states that \ufffd[n]o vote shall be declared invalid or void if there is a clear indication of the intent of the voter as determined by the canvassing board.\ufffd Fla. Stat. \ufffd 101.5614(5) (2000). In its opinion, the Florida Supreme Court gave weight to that legislative command. Its ruling was consistent with earlier Florida cases that have repeatedly described the interest in correctly ascertaining the will of the voters as paramount. See State ex rel. Chappell v. Martinez, 536 So. 2d 1007 (1998); Boardman v. Esteva, 323 So. 2d 259 (1976); McAlpin v. State ex rel. Avriett, 19 So. 2d 420 (1944); State ex rel. Peacock v. Latham, 169 So. 597, 598 (1936); State ex rel. Carpenter v. Barber, 198 So. 49 (1940). Its ruling also appears to be consistent with the prevailing view in other States. See, e.g., Pullen v. Milligan, __ Ill.2d __, 561 N. E. 2d 585, 611 (Ill. 1990). As a more fundamental matter, the Florida court\ufffd s ruling reflects the basic principle, inherent in our Constitution and our democracy, that every legal vote should be counted. See Reynolds v. Sims, 377 U. S. 533, 544\ufffd555 (1964); cf. Hartke v. Roudebush, 321 F. Supp. 1370, 1378\ufffd1379. (SD Ind. 1970) (STEVENS, J., dissenting); accord Roudebush v. Hartke, 405 U. S. 15 (1972).


Since Stevens didn't address Scalia's rebuttal here, they're talking past each other it seems to me. They each make a good case. I don't know how I would have decided myself. The equal protection aspect (all votes should be subject to the same standards) strikes me as crucial in this case. Scalia's argument about the ballots potentially being damaged in a recount is certainly true, but wouldn't have been an issue if FL had a different ballot system in the many of the counties of contention. But Stevens certainly has lots of case law to back up his opinion.

Yes, I agree with you that ideally the process would have been handled by the FL legislature (they have the power to choose the delegates). But it was clear that the courts were going to be involved for a long time with various aspects of the case, so they would have had to have ruled eventually.

It was a bad situation. I don't think the US SC handled what they were given all that poorly. I concede that I might feel differently if Harris had been a democrat and had certified that Gore was the winner and the US SC ruled for Bush recounts though (I've felt for a long time that it was Harris' job to certify the winner and once she did so that was that under FL law - with the caveat that the FL legislature could choose someone else.)... That would strike me as a partisan ruling (if the circumstances were the same in other respects).

Dershowitz is very good at what he does, but I don't like him. Especially after his working on the OJ Simpson defense. America needs lawyers like him to keep the system working properly, but he often rubs me the wrong way.

My $0.02.

Cheers,
Scott.
New That is the point
The whole point of this book is to break down in great detail just how wrong the Supreme court was in it's ruling.

To adress the specifc points you mention here. The first point mentioned by Scalia is that counting of votes of questionable legality harms the defendant and the country because it throws his victory into question. This argument is amazingly spurious, since having the election decided by a court decision can at best be equally harmful and is very likely worse.

The second point Scalia raises here make more sense, but the book shows exactly how Scalia is going against the legal principles that he has long crusaded for by raising this point. Scalia has long advocated the importance of the Supreme Court not over ruling state courts unless there is a clear cut reason for doing so, that the Supreme Court should not override state courts on matters of state law, and has held the posistion that long tradional systems should be held to be legal even if they are superficially questionable. In raising the second point Scalia has gone against all of these principles to get a decision that he falls in line with his political beliefs.

Jay
New Dershowitz and O.J.
I share the nausea, but you open a bucket o'worms, at the root: sordid employment of the English language, in the precise manner that Billy n'Bally employ that - to spin, create tautologies, intentionally confuse "scale and relativity" - and other common Bowdlerizations which IMhO, 'we' as a kultur: have become inured to, through incessant exposure.

These are the stuff of the daily cacophony of phoniness, spin, $-oriented pitches - all intermixed with maudlin sentimentality. (Insincerity is as Homo-sap as apple pie; if one is good at it: Praise / Marketing job assured) The success of patently bogus arguments appears related to maybe, *not* being taught adequately through school experience: how it is most often that - people lie with words.

Yes, many learn this about 'us', but that knowledge comes too late - for too many. Too many on juries - for one? For suggestible folk are now targetted via sophisticated technical means: for malleability in a certain direction. THAT is the *pre-game* which determines outcome before the players take the field. IMhO. We have made this ultimate cynicism - 'respectable' thus maiming That word along with others like, 'innovation' yada yada.

Lawyers thus may be the prototype for intentional misuse of language, putatively in the "higher cause" of - redefining the idea of 'adversarial'. IF you accept the notion that, it is OK to 'win for your client' via ANY MEANS possible (even if you 'know' s/he is guilty? or that the words used are intentional appeals to irrelevant thus bogus emotional doggerel? fill in others ___) THEN:

Has it-all not now become a religious thing? Precisely such IMO, for to "play" in the US 'legal sport' (and most? but not all others?) -- one must give lip-service to what Fred Rodell, Dean of the Yale Law School dubbed, the entire pseudo-science of the law.

And that p-science appears to assert all the above. 'Truth' is to be assiduously sought IF and ONLY IF: it helps YOUR case; ELSE its uncovering is to be vigorously fought via every inane precedent as can be indexed, retrieved (or exemporaneously invented?) and announced -- as interruption to the process. 'Trial by Combat' of this kind is tantamount to, if the witch survives the dunking and lives - she must not be a witch. (or.. did she survive because.. she is?)

So then.. is Dershowitz a slime because he is Good at the Religion of 'law' = because being Good at THAT: has little to do with er Truth, Honor, Justice, ____ ? Remember too the spin which sustains such a travesty (if it is seen to be a travesty?) derives from very much else that suffuses Murican culture and many (but not all) others:

The Murican Dream\ufffd overall, only part of which is: the Hollywood version of Honest advocates merely and cleverly Seeking Truth. Perry Mason. (er the author).

Does a Brandeis, at the top - ameliorate the legions of wannabe Dershowitzes which appear in 'his' court? We may (only) hope so. A Scalia/Thomas? too? But then overall: what is the average "play" much more likely to create, for the average schmuck with limited funds to buy 'average' defense?

[Let's not even start on contemporary Drug Warz, confiscations, DA politics, the exploding prison Corporate Industry and 3-Strikes computer-sentences. Not here, anyway]

Condemn Dershowitz and you condemn the entire pseudo-science. (However deeply ingrained, by repetition of the pious slogans about the Majesty of homo-sap Law) Don't you?


Ashton
then.. What To 'Do' next (?) Sue?
New my beef is they should have sat on their hands
they jumped in way too early and should have let the state legislature and the congress and senate fight it out, via the constitutional safeguards.
thanx,
bill
why did god give us a talleywhacker and a trigger finger if he didnt want us to use them?
Randy Wayne White
     Supreme Injustice - (JayMehaffey) - (5)
         have zero respect for the author while agreeing with his - (boxley) - (4)
             Don't want to recycle a huge thread but... - (Another Scott) - (3)
                 That is the point - (JayMehaffey)
                 Dershowitz and O.J. - (Ashton)
                 my beef is they should have sat on their hands - (boxley)

I R UR GRAMMER NATZEE GAWD.
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