Votes that Counted: How the Court Decided the 2000 Presidential Election
Chicago & London: The University of Chicago Press, 2001.
$27.50, 306 pages, ISBN 0-226-29407-2.
The Vote: Bush, Gore & the Supreme Court
Cass R. Sunstein & Richard A. Epstein eds.
Chicago & London: The University of Chicago Press, 2001.
$18.00, 272 pages, ISBN 0-226-21307-2.
The Unfinished Election of 2000: Leading Scholars Examine Americas
Jack N. Rakove, ed.
New York: Basic Books, 2001.
$25.00, 270 pages, ISBN 0-465-06837-5.
Université de Rouen
Back in the summer of 1989, a friend of mine from upstate New York
was invited by a colleague to spend the day on a yacht on Lake Ontario.
She kindly took me along, seeing that this was my first visit to the
States and I had never seen the lake. After some two hours on board,
I politely asked our hostess when we would start cruising around.
She snapped, Were not going anywhere, the engines dont
work. Taken aback, I thought I would crack a joke, so as to
relieve the obvious tension. Oh, I said, she looks
brand new, maybe you should sue the people who sold her to you.
It turned out she was suing them. Feeling embarrassed and foolish,
I said, Well, I hear Americans will sue for anything, given
half a chance, I even hear they sue doctors for failing to cure seventy-year-old
men of cancer, ha ha. She barked, My husband died of cancer
last year, he was 71, I am suing the clinic! After that, I retreated
to a far corner on deck and waited for the day to end.
I now know better, and never joke about such matters when I cross
the Atlantic. There are in the US four times as many lawyers as there
are in France, proportionally to the number of inhabitants. Of course,
some might argue that French lawyers should be more numerous; but
surely it is forgivable to think that maybe Americans are slightly
excessive in this respect.
Indeed, these days even presidential elections are settled in court.
Howard Gillman is associate professor of political science at the
University of Southern California; he is the author of The Constitution
Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence
(1993), a book that is well known by everyone whos interested
in public law. The Votes that Counted: How the Court Decided the
2000 Presidential Election, begins with a welcome 8-page chronology,
listing one case after another. Fladell v. Palm Beach County Canvassing
Board, McDermott v. Harris, Siegel v. LePore, Gore
v. Miami-Dade County Canvassing Board, etc. In his Introduction
Gillman immediately shows that Election 2000 was a judicial as well
as a political challenge. The rest of the book is a subtle blend of
narrative and analysis. The way the Supreme Court entered the arena
is carefully examined, with just the right amount of details about
the different stages that were successively reached. Gillman speaks
of rounds, conjuring up some titanic fight between the
candidatesor is it between lawyers and judges? The butterfly
ballot business is clearly explained, which was not always the
case in the media back then. Gillman is very convincing when he outlines
the politics behind the votes that counted, and does not
try to spare anyone. The book concludes with useful appendixes and
a table of cases that will surely be invaluable to law students.
Throughout The Votes that Counted: How the Court Decided the 2000
Presidential Election, Gillman records all the first-time-ever
events of the post-election suspense period, and in the fifth chapter
in particular, entitled The Dam Breaks: Five Justices Pick a
President, he reminds us of this capital fact:
When the Bush campaign asked the US Supreme Court to stop a last ditch
effort to recount Floridas ballots they created the first case
in US history with the names of two presidential candidates in the
title. The election litigation had always been a battle between the
vice president and the Texas governor, but now it had officially become
Bush v. Gore.
The Vote: Bush, Gore & the Supreme Court, edited by Cass
R. Sunstein and Richard A. Epstein, is a well-balanced collection
of papers by a handful of specialists, professors of law, of jurisprudence,
a judge, who all have impressive CVs. Indeed the authors disagree
in ways that amusingly recall the way the Supreme Court itself was
divided. I find it functions rather well as a sort of companion piece
to The Votes that Counted: How the Court Decided the 2000 Presidential
Election. Here are the titles of the papers, which speak for themselves:
In Such Manner as the Legislature Thereof May Direct: The Outcome
in Bush v. Gore Defended, Leaving the Decision
to Congress, Political Judgments, The Newest
Equal Protection: Regressive Doctrine on a Changeable Court,
Two-and-a-Half Cheers for Bush v. Gore, Suspicion,
or the New Prince, Democracy and Disorder, Bush
v. Gore: Prolegomenon to an Assessment (by Richard A. Posner,
no less), Bush v. Gore: What Were They Thinking? (my favorite),
Order Without Law, and In Defense of the Courts
Legitimacy. The Introduction by Cass R. Sunstein is entitled
Of Law and Politics, and the Afterword by Richard A. Epstein
Whither Electoral Reforms in the Wake of Bush v. Gore.
Some of the pieces distinctly verge on philosophy; interestingly,
even the authors who try to exonerate the Supreme Court Justices do
so with a great deal of caution, and not always very convincingly.
Pamela S. Karlan, who contributed to The Vote: Bush, Gore &
the Supreme Court, also wrote a chapter of The Unifinished
Election of 2000: Leading Scholars Examine Americas Strangest
Election, edited by Jack N. Rakove. In both pieces, her concern
is Equal Protection, and how the Supreme Courts decision constitutes
a dangerous precedent. This book is more varied than the former, inasmuch
as it is not exclusively the product of professors of law; there are
different perspectives, political science, American Studies, history
But the two books have one thing in common: they splendidly illustrate
the Election 2000 controversy, that will probably last forever. One
thing is clear, no-one will ever be able to trust the Supreme Court
naively any longer. I wonder what will happen in November 2004. Will
all the people who did not bother voting in 2000 (Im thinking
notably of many African Americans, women, and gays) feel more motivated,
because of what happened, or will the voting booths be even more deserted?
To conclude, considering the huge amount of Election 2000 accounts
that have now been published, the above three books are the ones I
would principally recommend, notably to those among students and teachers
who are anxious to form a balanced opinion on what will remain a fascinatingly
unusual presidential election. I also recommend Deadlock: The Inside
Story of Americas Closest Election, by the Political Staff
of The Washington Post (2001).
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