Supreme Cheats

Alan Dershowitz on no-good, lousy judges-and how to stop them.

When I was a law student, we had heroes. Clarence Darrow was the attorney for the damned. Thurgood Marshall risked his life to bring about racial equality. Our fictional heroes were perfect, too. Perry Mason never lost. Atticus Finch acted solely on principle. Then, of course, there were the Supreme Court justices: black-robed icons who stood above reproach. Generations of law students were brought up on Gideon's Trumpet, Anthony Lewis' hagiographic account of how the noble justices provided counsel for an indigent who then proved his innocence.

Today, our heroes have clay feet. It turns out that Clarence Darrow almost certainly bribed jurors (though he was a great trial lawyer). Thurgood Marshall was a mediocre courtroom lawyer (though a great legal strategist). Our current fictional legal antiheroes-as created by the likes of John Grisham-tend to be ethically challenged drunks, opportunists or sexual predators. And now we learn that a majority of our Supreme Court justices cheated in order to secure the presidential election for their candidate.

If you think that "cheat" is too strong a word, consider the following law school hypo: Imagine if, six months before the election case, 1,000 of the most prominent constitutional-law professors, Supreme Court litigators and journalists who cover the High Court had been given an approximation of the majority opinion in the Florida case. Only here's the twist. The names of the litigants and their party affiliations were not provided. Suppose further that each of the experts had then been asked to rank the sitting justices on a scale of most likely to least likely to (1) grant a stay to stop the recounting and (2) permanently end the hand recount on the grounds that the "intent" of the voter was a standard so imprecise that it violated the equal protection clause.

Is there anyone who believes the experts would have predicted the votes of the five justices as they actually wound up voting? Please. To the contrary, most surely would have predicted that, on the basis of their prior decisions, Chief Justice William Rehnquist and Justices Antonin Scalia, Clarence Thomas and Sandra Day O'Connor would have been the least likely to join such a decision. After all, these judges have repeatedly ruled that the same equal protection clause is not violated when the state executes convicted murderers on the basis of far less precise standards. Had then-Vice President Al Gore been ahead by a few hundred votes and then-Governor George W. Bush been seeking a recount, I have no doubt these justices would have mocked any equal protection claim made by Gore.

If I am right-and you know I am-then what else could this be but cheating? To render judgment based on partisan politics-on the party affiliations of the litigants-is to violate the first rule of judging: Never decide a case on the basis of favoritism.

Okay, so now you believe that some justices cheat. You probably already suspected that some lower-court judges play favorites with lawyers and litigants who supported their election or appointment. But Supreme Court justices? That came as a surprise even to a lifelong cynic like me. What does this revelation do to your commitment to the rule of law? Does it give you a license to cheat?

My hope is that it redoubles your commitment to the rule of law and to total honesty in its practice. It should also make you more suspicious of all legal and judicial institutions. Trust no one in power, including-especially-judges. Don't take judicial opinions at face value. Go back and read the transcript. Cite-check the cases. You will be amazed at how often you will find judges "finessing" the facts and the law. Too often, legal observers take as a given judges' intellectual honesty. It's up to you to do a better job. If you smell a rat, blow the whistle to the Judicial Conference, the American Bar Association, Congress. At the same time, protect yourself from accusations of unprofessional conduct by being absolutely sure of your criticism (never forget that judges and lawyers protect one another).

In the meantime, get real. Understand that judges are human beings and that in America most of them have gotten where they are by playing the partisan political game, and playing it well. The best check on the judiciary is a suspicious consumer.

It must start in law school. It must start with you.