The Recorder, February 13, 2001

High Court Justices Take Bush v. Gore For a Spin


By Tony Mauro

WASHINGTON - The late Supreme Court spokeswoman Toni House used to tell reporters, "The Supreme Court doesn't do spin."

True enough, in that the court lets its opinions speak for themselves.

But recent events suggest that, outside the courtroom, justices are not above engaging in Washington's hometown sport. In the last few weeks, as members of the court fanned out across the country to give speeches, it would be hard not to think that at least some of them did so with a form of spin - call it damage control - in mind.

Justices Antonin Scalia and Stephen Breyer publicly stated that Bush v. Gore - the decision that secured the presidency for George W. Bush - produced no raised voices or lingering animosities among the justices. And Justice Ruth Bader Ginsburg, while hinting at her displeasure with the decision, said that the public's trust in the court will survive the episode. Reports persist of heightened tension and lower productivity among justices and clerks, but to hear the justices speak publicly, all is harmonious, as if nothing unusual happened in December.

Lasting nearly a month, the court's lengthy winter break is often the occasion for justices to hit the road and speak before law schools and other audiences sometimes, but not always, in warmer spots than Washington, D.C.

This time, they left Washington amid a still-simmering level of anger and turmoil outside the court, no matter what the relationships are like inside.

A total of 524 law professors joined in a statement published in a Jan. 13 advertisement in The New York Times asserting that "the Supreme Court has tarnished its own legitimacy." The number of signatories has since risen to 655, and co-coordinator Margaret Radin, a Stanford University law professor, says of the decision, "History will tell. One constitutional law professor told me it's the worst decision in 100 years. I agree."

In the liberal weekly The Nation, famed former Los Angeles prosecutor Vincent Bugliosi wrote that the five justices in the majority are criminals who stole the election. "The only thing that is missing is a specific provision of the U.S. Code," Bugliosi says in an interview. "What they did is morally reprehensible." Reaction to Bugliosi's piece? "By far the most popular piece ever on our Web site," says Nation associate publisher Peter Rothberg. "It has generated 5,000 letters e-mail and paper and 97 percent are positive."

So it was not surprising that demonstrators greeted Justice Scalia when he spoke in San Diego on Jan. 23 as a guest of the Thomas Jefferson School of Law. His talk had to be moved to a larger hall because of high public interest.

"Trust me, there was no bitterness at the court after the decision was made, " Scalia assured the audience, according to local press reports. "If you can't disagree without hating each other, you better find another profession."

Delving into the decision to an unusual degree, Scalia said he could "point to a text in the Constitution" to justify all the holdings of the majority in Bush v. Gore.

"He totally convinced the audience that the decision he made was made purely on principle and not on politics," says professor Susan Tiefenbrun, who was Scalia's host. "He is the most misunderstood justice in America."

After conquering San Diego, Scalia moved on to Honolulu, where on Jan. 27 he debated American Civil Liberties Union President Nadine Strossen on the First Amendment. Even without advance publicity, protesters picketed outside.

Strossen afterward said "a tiny minority" of ACLU board members thought Scalia should not be a guest of the organization, and there was also some grumbling about Scalia's customary ground rules for the event no cameras or tape recorders allowed. At the last minute, Scalia agreed to let the talk be taped for educational purposes, but no one had a video camera handy. "So it was gone with the wind," Strossen lamented.

Scalia said nothing about Bush v. Gore. But he did cause controversy, according to Strossen, by suggesting without hesitation that several landmark decisions of the court were wrongly decided. Among them: New York Times Co. v. Sullivan, the libel decision that has given strength to the modern news media, and Meyer v. Nebraska and Pierce v. Society of Sisters, cases from the 1920s that are the building blocks of today's concept of privacy.

"He was out of control," said Strossen light-heartedly.

Justice Breyer had his turn at the podium at the University of Kansas School of Law on Jan. 25. There, he said that even in a case as politically charged as Bush v. Gore, the court acts with the law in mind. "It isn't ideology, and it isn't politics," he said.

He added,"When you're talking about the judicial system, what you're talking about is people carrying on a discourse completely informed and civilized."

Breyer also echoed the statement made by Justice Clarence Thomas the day after the Bush v. Gore decision: "I can't remember an instance in conference when anyone has raised their voice in anger."

Ginsburg's Feb. 1 comments were made at the University of Melbourne Law School in Australia. She was careful not to say too much, but some of her negative feelings came through. She cited the law professors' New York Times ad and said the wisdom of the court's actions in the election case "await history's judgment."

But then, in a more conciliatory way, she cited commentators who had looked to the Supreme Court hoping for a swift resolution to the election dispute.

"These sentiments reflect, it seems to me, long and widely held trust in the fairness and reasoned decision-making of the U.S. federal judiciary," Ginsburg said. "Whatever final judgment awaits Bush v. Gore in the annals of history, I am certain that the good work and good faith of the U.S. federal judiciary as a whole will continue to sustain public confidence at a level never beyond repair."