The Boston Phoenix December 28, 2000 - January 4, 2001


Litigation nation

In 2000, everyone discovered that the legal system is politics as usual

by Seth Gitell

War is the continuation of politics by other means, according to the German military strategist Karl von Clausewitz. But the events of 2000 have twisted that saying: in America, the extension of politics is not war but litigation.

To be sure, there's nothing new about lawsuits' supplanting the political process. Major political battles -- from desegregation to Watergate to abortion -- have been fought in the courts for half a century. Indeed, the courts have become the final forum for seemingly insoluble political disputes. American policy toward Cuba this year was forged in large part by the federal Court of Appeals for the 11th Circuit, which allowed the Clinton administration to send Elián González home. So, in many ways, it's not surprising that an election too close to be decided by the public should have ended up in the courts.

But this year was, to borrow Malcolm Gladwell's phrase, the tipping point -- the year everyone realized that the judiciary is just as infused with politics as every other public institution of the US government, and that its brand of politics is just as grubby.

On December 12, when the Supreme Court ruled 5-4 to stay the hand recount of Florida votes that might have given Al Gore the presidency, US Representative Robert Wexler stood outside the august chambers looking downcast. "Unfortunately, the Supreme Court has proven itself to be as partisan as the Congress or any legislature in the country," he told the Phoenix. After the ruling, the New Republic ran the one-word headline DISGRACE. Salon headlined its analysis SUPREME COURT TO DEMOCRACY: DROP DEAD.

But despite the nation's shock, not everyone thinks it's so bad that the Court revealed its partisan nature. Some legal scholars believe the decision may end up being good for the country, because people will finally realize what's at stake in presidential elections: first and foremost, the Supreme Court. "A lot of people who spend their lives studying constitutional law expect this [kind of politically motivated ruling]," says University of Virginia law professor Michael Klarman. "But the public has in their mind this beautiful myth that what the Supreme Court does is about law and not about politics. Why would we expect the Supreme Court justices not to be affected by their politics?"

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If nothing else, at least the conflict is peaceful, unlike many of its historical precedents. With its seconds, surrogates, and scions, the post-election crisis calls to mind the spectacle of medieval conflict. There are classical overtones, too: Bush the Elder and Bush the Younger, Daley the Second, Gore the Pious, and the Clinton clan. Edward Gibbon's The History of the Decline and Fall of the Roman Empire recounts numerous tales of disputed succession, all of which contain common elements: two or more emperors with claims to the throne, the appeal to the military and the Praetorian Guard, and chaos followed by the restoration of order. Gladiator, perhaps the most popular film of the year, depicted just such a succession struggle, where the pretender to the purple robe is killed in combat by a rival (although, historically, the Romans were more likely to settle their political differences with horse races). But in America this year, no militias roamed the streets, military leaders did not take over, and the outcome of the election did not hinge on a horse race.

Instead, we had lawyers and judges. Gore's champion was David Boies; Bush's was Barry Richard. Like most hotshot lawyers, both are experts at what attorneys call "forum shopping." Bush-family consigliere James Baker and his team initiated the legal battle when they filed suit in federal court. Notwithstanding the clear contradiction with conservative principles (more on that later), the Republicans correctly wanted to get their argument in line to be heard by the United States Supreme Court -- where they hold the sympathies of the majority. Similarly, the Democrats sought refuge in the state courts, and got in line to be heard by the solidly Democratic Florida Supreme Court.

"One striking thing that any sensitive person has to acknowledge is that people who favor Al Gore [favored] a set of legal positions that would lead to his election, and that people who favor George Bush [favored] a set of legal positions that would lead to his election," says L. Michael Seidman, a law professor at the Georgetown University Law Center.

Widespread recognition of the judicial/political nexus has been coming for some time. In his book about the Clinton impeachment crisis, A Vast Conspiracy, Jeffrey Toobin links "the legal system's takeover of the political system" to the efforts by progressives to change laws through the courts when implacable legislatures refused to alter them. Thurgood Marshall, for example, desegregated American schools by taking Brown v. Board of Education to the Supreme Court. And it was Democrats who attempted, long before Whitewater, to defeat their political enemies by legal means during the Watergate and Iran-contra scandals. It's true that the cases aren't perfectly parallel: both Watergate and Iran-contra differed from the initial Whitewater investigation in seriousness, scope, and timing, and Clinton's initial illicit activity took place well before his presidency. That said, though, the Republicans were emulating Democratic techniques when they pushed for the Whitewater independent counsel and Clinton's impeachment. In fact, the practice of using the courts to spank your political enemies goes back even further. "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question," Toobin quotes Alexis de Tocqueville as observing.

But never had the court system actually decided an election, even though American history had witnessed several electoral crises. In 1800, for example, both Thomas Jefferson and Aaron Burr received 73 electoral votes, sending the election to the House of Representatives. Alexander Hamilton, a rival of Burr, flipped his support in the House to Thomas Jefferson, with whom he had also clashed, thus ensuring Burr's defeat. (Soon after, Burr killed Hamilton in a duel off Manhattan island.) The election of 1824 also went to the House. John Quincy Adams, who had failed to secure either a popular or an Electoral College majority, won the support of Senator Henry Clay by promising to make him his secretary of state and defeated Andrew Jackson, who had won the popular vote (although not the Electoral College) by a considerable margin. Jackson termed the arrangement the "corrupt bargain," and Adams never earned legitimacy. And in 1876, Rutherford B. Hayes defeated Samuel Tilden after a deal was made that allowed the South to terminate Reconstruction.

But this year, the disputed election was resolved not in Congress but in the courts. And conducting politics by legal means seems typical of our times. Take the impeachment of President Clinton. Conservatives hoped to unseat a president through the use of a political prosecutor, and Clinton had to rely on high-priced lawyers to survive. Ken Starr himself is a lawyer, and the Republican congressmen and House "managers" acted as lawyers. Still, at least the impeachment took place in the House and the trial took place in the Senate, not in a court of law per se. The post-election struggle didn't even make a pretense of political negotiation -- instead, the battle took place solely in the courts.

For sheer hypocrisy, it's tough to beat the image of the Republicans -- those champions of states' rights -- rushing to the US Supreme Court to stay the hand recounts in Florida. These are the same people who've been bitching for years about judicial activism and federal meddling in areas as diverse as abortion rights and gun control.

Consider Printz v. United States, an important 1997 case involving gun control. That case questioned the constitutionality of the Brady Bill's requirement that local law-enforcement officials conduct background checks on gun buyers. Not surprisingly, Antonin Scalia, the court's most influential conservative, drafted the majority opinion striking down the background-check provision. Also predictable was Scalia's rationale: that the federal government should not intrude too much on the autonomy of local authorities. "The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program," he wrote.

Oh, well. That was then. This is now. With the Republicans getting smacked around in the Florida Supreme Court, conservatives quickly looked to Scalia and his henchmen for a lifeline. For years, politicians were seen as hypocritical while judges -- even conservative ideologues like Scalia -- were believed to operate solely on laws and facts. Now we know better.

Not that the Democrats are innocent. Conservative legal writer Bruce Fein pointed out the failings of both sides in a November 25 column in the New York Post. During the presidential campaign, Gore told voters he would nominate justices who favor broad interpretations of the Constitution -- the same kind of interpretations that allowed for abortion, gun control, and racial preferences, Fein noted. Yet Gore's brief in the first Supreme Court case sounded "like the greatest hits of Alabama Gov. George Wallace, circa 1963," Fein wrote. The brief argued: "Intervention by this Court in this ongoing process ... would work a significant intrusion into a matter -- the selection of electors -- that is both fundamental to state sovereignty and constitutionally reserved to the states."

As the battle raged on op-ed pages and cable television, the political nature of the courts became public knowledge. Former New Hampshire governor John Sununu went on CNN to rail against the Democratic Supreme Court of Florida. Then Harvard Law professor Alan Dershowitz appeared on MSNBC's Hardball. "We're hearing so much about Democratic judges," said Dershowitz. "You don't hear anything about the Republican judges in the 11th Circuit or in the Supreme Court. They're going to the 11th Circuit because they think they have Republican judges who will support them there."

The same could be said about the Republican decision to go to the Supreme Court. It's an understatement, in fact, to say that Scalia and company "supported" Bush -- they handed him the election. Jesse Jackson has suggested that the case was as disgraceful as the Dred Scott decision, the infamous pre-Civil War ruling in which the Court held that slaves were personal property and could not become free by virtue of having been brought by their masters to "free" territories. Legal scholars also liken the recent crisis to Dred Scott, but for different reasons: in both cases, they point out, Americans hoped the Court would decide an issue that the political process could not resolve. In Scott, the issue was whether slavery was legal in the American free territories. The ruling, presided over by a chief justice who was partial to the South, started the chain of events that led to the Civil War. The decision was good in a sense, because it eventually led to the end of slavery; but it did so by taking the air out of moderates on both sides. War became the only alternative.

Georgetown's Seidman contends that most current judicial holdings are good because they never settle questions permanently. Anti-abortion advocates always have hope that they will gain just one more Supreme Court justice and overturn Roe v. Wade. This, in turn, reduces the number of John Salvis and Eric Robert Rudolphs running amok. Likewise, Seidman had hoped that whichever side "lost" the battle for the presidency, the other side could continue to litigate well after the inauguration. Obviously, that didn't happen; Gore decided to quit after the Supreme Court ruled against him. Remember, however, that the Court remanded the case back to Florida, and its legalistic language seemed to leave Gore a crack of daylight. That's why the television networks had so much trouble figuring out what the ruling said. The Democrats made a political judgment -- not a legal one -- that the best thing for Gore to do was concede.

"It's a good thing to have people arguing in court," says Seidman. "That's a pretty good alternative to having them shooting each other. The Supreme Court is good, but for the opposite reason most people think. Most people think, `Thank God we have the Supreme Court, which stands above politics and can settle our differences.' But it's in spite of itself that it's good. The Supreme Court is good because it's going to destabilize outcomes. It uses a set of tools that produce indeterminate outcomes."

In other words, a bunch of yammering lawyers may make you sick, but it beats the alternatives. We could have Al Gore, decked out with a trident and net à la Russell Crowe, battling George W. Bush with a sword and shield at FedEx Field outside DC. But we're better off with the lawyers.

Seth Gitell can be reached at sgitell[a]

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