ONE OF the reasons Bush v. Gore won't go away is that its scholarly critics--who are numerous, influential, and vehement--won't let it. Many of the biggest guns in the business--Yale's Bruce Ackerman, Harvard's Alan Dershowitz, New York University's Ronald Dworkin--weighed in early and denounced the decision unequivocally. Along with a substantial portion of their colleagues from law schools around the country, they have not been content to argue that the case was wrongly decided. Rather, in a continuing flow of newspaper op-eds, opinion magazine essays, law journal articles, academic conferences, and university press books, they have insisted that the December 12, 2000, per curiam opinion joined by the five more conservative justices on the U.S. Supreme Court was lawless and undemocratic.
Now Laurence Tribe, the Tyler Professor of Constitutional Law at Harvard Law School, an eminent appellate advocate and among the nation's foremost scholars of constitutional law, has stepped forward in the pages of the November 2001 Harvard Law Review to correct and refine and lend scholarly gravitas to the academic critique of Bush v. Gore. In the preciously entitled "Erog .v Hsub and its Disguises: Freeing Bush v. Gore from its Hall of Mirrors," Tribe provides one of the densest and most legally sophisticated attempts to date to demonstrate that the majority's legal arguments were "completely without merit," and that the Court's intervention betrayed an "utter disdain for democracy and its pluralistic institutions." The result of his labors, however, is a monument to the lengths its critics will go to make
a scandal out of the case.
The academic critics have claimed that the U.S. Supreme Court was wrong in holding that the statewide hand recount of undervotes (ordered by the Florida Supreme Court on December 8, 2000) violated the Equal Protection Clause of the Fourteenth Amendment. It erred as well in concluding that under Florida law time had run out as of December 12 (the federal safe-harbor deadline) to conduct a constitutionally proper recount. In so ruling, the critics have charged, the conservatives committed an inexcusable violation of their judicial duty to decide cases in an impartial and principled manner. The conservatives' disgraceful decision was intelligible only as a reckless partisan act perpetrated to hand the presidency to their candidate.
This grave accusation, which quickly congealed into the academy's conventional wisdom, has far-reaching consequences. It inflames partisan anger and provides Democrats with a seemingly respectable motivation for obstructing President Bush's nominations to the federal bench. It warps the important public debate about the relation in our constitutional system between the courts and the democratic process. And--most damaging of all, perhaps--over the long haul, as the legal academy disseminates its disgust and disdain in the classrooms, it threatens to corrode the next generation of lawyers' confidence in the judiciary and their respect for the rule of law.
WHAT MAKES these consequences particularly unfortunate is that the conventional wisdom that gives them life and legs is deeply flawed. To begin with, the academic critics misstate the holding of the case. It was not only that the Supreme Court held that the Florida recount unconstitutionally diluted the weight of citizens' votes by treating similarly marked ballots differently, applying different standards from county to county and sometimes within the same county and in the same counting room. What the critics overlook is that votes were also subjected to arbitrary and disparate treatment, the Court held, because the Florida court's recount excluded overvotes, the much larger class of spoiled ballots on which machines detected more than one choice for president; because it included the results of a partial and unfinished recount in Miami-Dade County; and because it allowed untrained and unsupervised personnel to count votes.
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