Legal Ethics
Bush v. Gore and the Boundary Between Law and Politics
110 Yale L.J. 1407 (2001) Shortly after the Supreme Court's 5-4 decision in Bush v. Gore, one member of the majority, Associate Justice Clarence Thomas, addressed a group of students in the Washington, D.C., area. He told them that he believed that the work of the Court was not in any way influenced by politics or partisan considerations. This speech was widely reported in the press. Afterwards the question on many legal scholars' minds was not whether Justice Thomas had in fact made these statements. The question was whether he also told the students that he believed in Santa Claus, the Easter Bunny, and the Tooth Fairy. It is no secret that the Supreme Court's decision in Bush v. Gore has shaken the faith of many legal academics in the Supreme Court and in the system of judicial review. It is worth considering why this should be so. Legal academics rationalize bad judicial decisions all the time; that is part of their job description. Moreover, the fact that a few judges occasionally make mistakes in legal reasoning, even very egregious mistakes, should come as no surprise, nor should it cause one to lose faith in the rule of law, the U.S. Supreme Court, or in the system of judicial review. Likewise, the fact that a few judges occasionally decide cases because they secretly favor one party over another should also come as no surprise; nor should isolated examples of judicial corruption cause one to lose faith in a larger process of legal decisionmaking. The problem with Bush v. Gore, I suspect, was the case was too salient an example of judicial misbehavior for many legal academics to swallow. It was no isolated fender bender in which a local judge helped out the son of a former law partner. Rather, the case decided the outcome of a presidential election and may well have determined who would sit on the Supreme Court and the lower federal courts for decades to come. Moreover, unlike the judge deciding the case of a fender bender in some obscure venue, the Court could not have failed to recognize that all eyes were upon it. That the conservative Justices acted as they did suggested that their partisanship was so thorough and pervasive that it blinded them to their own biases. It seemed as if they had lost all sense of perspective. In addition, Bush v. Gore was troubling because it suggested that the Court was motivated by a particular kind of partisanship, one much more narrow than the promotion of broad political principles through the development of constitutional doctrine. The distinction is between the "high" politics of political principle and the "low" politics of partisan advantage. The same five conservative Justices who formed the majority in Bush v. Gore had been engaged, for over a decade, in a veritable revolution in constitutional doctrines concerning civil rights and federalism. In those decisions, the five conservatives had been promoting a relatively consistent set of ideological positions like colorblindness, respect for state autonomy from federal interference, and protection of state governmental processes from federal supervision. But the decision in Bush v. Gore did not seem to further those values, at least not directly. Rather, the five conservatives seemed to adopt whatever legal arguments would further the election of the Republican candidate, George W. Bush. This is the "low" politics of partisan political advantage. Although few legal academics these days are shocked to learn that Justices' decisions are "political" in the sense that they promote "high politics"--larger political principles and ideological goals--they were quite disturbed by the possibility that Justices would use the power of judicial review in so prominent a case to promote the interests of a particular political party and install its candidates in power. Indeed, the appearance, if not the reality, of this kind of partisanship in Bush v. Gore casts an unsavory light on the constitutional revolution of the last decade. It was widely speculated before and after the election that several of the Justices might retire within the next few years. By intervening in the election, the five conservatives installed a President who would appoint their colleagues and successors and would stock the federal judiciary with like-minded conservatives. Bush v. Gore was troubling because the five conservatives appeared to use the power of judicial review to secure control of another branch of government that would, in turn, help keep their constitutional revolution going. It is one thing to entrench one's constitutional principles through a series of precedents. It is quite another to entrench one's ideological allies by directing the outcome of a presidential election. Because law professors are perhaps as committed to the legitimacy of the courts and the legal system as anyone else, Bush v. Gore will require them to reduce cognitive dissonance in manifold ways. Many of these forms of dissonance reduction have already begun. In this Essay, I discuss five features of the opinion. In Part I, I discuss the constitutional issues in Bush v. Gore and explain why so many people thought the Court's opinion was unpersuasive. In Part II, I consider the Court's institutional role and whether its choice to intervene in the election dispute was justified. Part III discusses the jurisprudential implications of Bush v. Gore--and in particular its relationship to two very well-known theories of jurisprudence, American Legal Realism and Critical Legal Studies. Part IV considers the place of Bush v. Gore in the "legal canon"--how the case will be understood, taught, and remembered. Finally, Part V offers a few suggestions about what the case means for the Court's legitimacy, both in the short term and in the long run. It also argues that, because of important structural features of the American Constitution, party politics provides the best remedy for the Court's actions.
Reply: Notions of Fairness Versus the Pareto Principle: On the Role of Logical Consistency
110 Yale L.J. 237 (2000) In other writing, we advance the thesis that legal policies should be evaluated solely on the basis of their effects on individuals' well-being, meaning that no independent evaluative weight should be accorded to notions of fairness. In that work, we consider a variety of principles of fairness, justice, and corollary concepts that are conventionally employed in the assessment of legal rules. In the course of our research, we discovered that each of the leading notions of fairness that we examined could be shown to conflict with the Pareto principle; that is, consistent adherence to any of the notions of fairness would, in some circumstances, make everyone worse off. This observation led us to inquire about the generality of the conflict, and we explored it in two articles. In the first, we demonstrated that, in symmetric settings (in which every person is similarly situated), every individual will necessarily be made worse off whenever a welfare-independent notion of fairness is decisive. In the second, a short, technical article intended for economists, we presented a formal proof of the proposition that, in all cases (symmetric or not), if a welfare-independent notion of fairness is given any weight in making social decisions, there will exist circumstances in which everyone is made worse off. Howard Chang has written an article in this journal that addresses aspects of our second article. He accepts the validity of our formal proof, but he challenges the appeal of our assumptions. Furthermore, he suggests that certain notions of fairness that do not satisfy these assumptions, including his own conception of liberal welfarism, could be sufficiently modified so that they would not conflict with the Pareto principle. (Chang's precise claim is unclear, however. The overall thrust of his article may give the reader the impression that many familiar notions of fairness might be susceptible to modification so as to avoid conflict with the Pareto principle, yet the analysis itself suggests only the logical possibility that the conflict can be circumvented with respect to modifications of certain types of notions of fairness, which are not formally specified. ) We begin this Reply by summarizing the demonstration in our first paper of the conflict between notions of fairness and the Pareto principle. This demonstration, which Chang does not contest, is easier to understand than our second, and it is independently sufficient to establish our conclusion. Then we consider our second, more technical demonstration of our conclusion. We emphasize that the two assumptions that Chang challenges are really minimal in character; in essence, they amount to requirements that normative theories be logically consistent. (Indeed, the relevance of centuries of moral philosophers' normative discourse depends on one of these assumptions.) We also explain how, even when one does not require logical consistency in the respects to be articulated, Chang's effort to show that certain notions of fairness can be altered so as to avoid conflicts with the Pareto principle is unsuccessful. Finally, we offer brief remarks on Chang's liberal welfarism, drawing upon arguments from our larger work. Before proceeding, we should note that we are well aware that many readers will be reluctant to accept our claims. First, the idea that all plausible notions of fairness conflict with the Pareto principle may seem surprising; indeed, it came as a surprise to us during the course of our research. Yet, analysis has revealed it to be true to a general extent. Second, some of our analysis--particularly the second demonstration with which Chang takes issue--is of a technical nature. We endeavor to explain the relevant points in accessible terms so the reader can see what is really involved in considering them. Third, the fact that notions of fairness have broad intuitive appeal to everyone--including to us--seems in tension with our critique. In our conclusion, however, we briefly draw upon our other writing to sketch some of the ways that this appeal can be reconciled with our overall thesis that notions of fairness should not be employed as independent evaluative principles in the assessment of legal policy.