Nominating the President Book

Twenty years after the Supreme Court delivered this disaster of an opinion, this book is even more prescient, more relevant for modern readers than in January 2001. As I finished this less than a week before the US House and Senate will convene to count the votes from the 2020 election, Americans are worried. Over the past two months the Trump campaign and his supporters have made some pretty dumb arguments, to wit:

1). Texas and about 20 other states filed suit in the Supreme Court to overturn the votes in Michigan, Georgia, Penn., and Wisc.;
2). Several members of the House brought suit last week, seeking a declaration that the Vice President has sole discretion to determine the winner of states' electoral college votes;
3). The Trump campaign has filed dozens of suits in multiple swing states, seeking to nullify votes despite his own attorney general stating that there was "no evidence of fraud" and despite the US Department of Homeland Security stating that this 2020 election was the "most secure in US history."

So what does any of this have to do with Bush v Gore, you ask? It's about credibility and the rule of law. In the months leading up to the 2020 election, many Americans found themselves asking whether the voting really mattered. (We should be otherwise pretty confident that dumb arguments will result in dismissals). Do we still live in a democratic republic, or are our close elections to be decided by the Courts? In this book Dershowitz points out how the majority justices decided to stop the votes in Florida based on a violation of the Equal Protection Clause despite: those judges historically limiting equal protection claims to race-based claims; failing to even identify the class of persons against whom there was discrimination; treating the Florida Supreme Court as though it was some lower Federal Court (and, again, this was contrary to States' Rights advocates positions that these very judges had taken). Bush v Gore left a very bad taste in the mouths of many Americans, leaving us cynical, jaded, hurt.

In the month before the 2020 election, the President himself stated that "this election will be decided by the Supreme Court," and then, in a naked grab for power, the Republican-controlled senate rushed to install a supreme Court justice (who was actually very qualified according to the American Bar Association). This Senate confirmation hearing became one of the most important events of 2020 (a year with lots of important events) for all Americans because our belief in the Supreme Court had been tarnished: no longer was this the unbiased, principled bastion of the Rule of Law, but just another political body, not a check on the power of the executive, but a functionary of the executive.

Dershowitz also points out, and this is really crucial, that Bush v Gore is not just among the most damaging, ill conceived opinions of the Supreme Court in US History. It is almost WORSE than Plessy v. Ferguson, worse than Dred Scott, worse than Korematsu -because the judges who decided those cases at least thought they were doing the right thing. Bush v Gore (and this is according to Dershowitz) reflects the decision of political actors making a decision that favors one litigant over another just because of that litigant's political party. Indeed the Court should be free of dirty politics, not rolling around in the mud with pigs. Likely the Court (I found his arguments to be persuasive), will have a hard time pulling itself out of the mud for a long, long, time.