Monday, September 17, 2001

Newsweek: How History Will View the Court

Final Ruling: The legal academy may still be blasting Bush v. Gore, but fears that the court would forfeit the public trust were overblown.

In Newsweek:

Last January, a month after the supreme court handed down its hugely controversial decision in Bush v. Gore--ending the month-old election stalemate and turning the White House over to George W. Bush--legal scholars across the country joined in protest. In a full-page ad in The New York Times, 554 law professors accused the high court of "acting as political proponents" for Bush, and "taking power from the voters." Worse, the ad scolded, "the Supreme Court has tarnished its own legitimacy."

That criticism has yet to subside. Some nine months into the Bush presidency, the debate over the ruling among legal scholars goes on. Many of the country's most respected legal minds have weighed in on Bush v. Gore. The critics contend the court should never have taken the case in the first place. It was a matter of state law, and should be left to state courts, as is the tradition, they argue. The majority's claim that the Florida State Supreme Court's recount procedures violated the Constitution's equal-protection clause is both novel and out of whack with conservative doctrine, they add. And they smirk at the justices' suggestion that their legal analysis should not carry the power of precedent.

The attacks are framed in unusually unflattering terms. Here's a sample. Yale Law School's Bruce Ackerman: "A blatantly partisan act, without any legal basis whatsoever." Harvard's Alan Dershowitz: "The single most corrupt decision in Supreme Court history." American University's Jamin Raskin: "Bandits in black robes."

But do such judgments reflect the merits of the ruling itself, or the professors' own ideological bias? It's hardly a secret that legal academia is a liberal bastion. Conservatives generally defend the result. There are dissenters, but the most forceful ones don't want their names in the newspaper. In the judgment of one such conservative legal thinker, the court's equal-protection argument was "laughable," and, he adds: "I think history will judge the decision harshly." He and many others have suggested that the court's conservatives would have handed down a far different ruling if Bush had been the one demanding a manual recount, and Gore had been demanding that it be stopped. In a recent book, U.S. court of appeals Judge Richard Posner, a highly respected Reagan appointee with liberal views on some issues, was kinder to the justices. He argued that the decision was poorly reasoned and badly written--but in the end fundamentally right, a "kind of rough justice" that was necessary to avert a political crisis threatened by the Florida court, which had "butchered" Florida's election laws and behaved like a "banana republic" in rigging an unreliable process for the recount.

As the academic establishment tells it, Bush v. Gore left the Supreme Court practically in ruins, and caused Americans to lose faith in the court's ability to put the law above politics. But is that true? Do Americans hold the court in lower esteem than they did a year ago? No.

Historically, Americans have ranked the court higher than Congress and the president in confidence ratings, and those ratings have not diminished in the months since the decision. In a Gallup poll, for instance, 49 percent of those surveyed expressed "a great deal" or "quite a lot" of confidence in the court immediately after the election ruling; 50 percent said so this June. That's a smidgen higher than the court's 47 percent approval rate in June 2000, long before the big controversy. It's hardly a surprise that the court is less popular among Democrats than before, and more popular with Republicans. Eighty-eight percent of Bush voters and only 19 percent of Gore voters polled by NEWSWEEK last December thought the decision was fair.

The deeper question is how the court will look in the cold, impartial eyes of history. A hard question to answer, especially since those eyes are neither cold nor impartial. Historians, like law professors, are often influenced by their own political world views. What's more, Bush himself may influence how future scholars judge Bush v. Gore. If Bush is ultimately considered a successful president, historians may come to look kindly on the court decision that put him in the White House. And vice versa.

No matter what history decides, the ongoing dispute has certainly raised the high court's profile in the minds of the public. The television networks think Americans are just dying to know what really goes on behind that crimson curtain. Not one, but two Supreme Court dramas will debut on TV in January. One, on ABC, stars Sally Field as a liberal justice. The other, on CBS, stars James Garner as the chief justice. Law professors will argue about the fate of the court for years to come. But for Hollywood, at least, the verdict is in.