Date Posted: 2003
Professor Tribe has now done to me just what I claim he did to the Supreme Court in "eroG v. hsuB". By repeatedly distorting what I actually said, "Unbearable Wrongness" creates illusory targets that Professor Tribe then holds up to ridicule. Leaving aside his many mischaracterizations of what I said, and the many arguments that he left unanswered in his extremely lengthy rebuttal, I focus here on our most significant points of disagreement: whether the Court's rationale for the decision in Bush v. Gore suffers from an "almost embarrassing bankruptcy," and whether the Court was legally prohibited from deciding the case at all.
These are the important issues, and it is important to keep in mind that Professor Tribe's attacks on me are significant only because he desperately needs to show that any legal defense of the Court is silly. That is the only way to sustain his own claim that the Court was playing a shell game in Bush v. Gore, or as he now says, that the Court's decision deserves to be greeted with "head-scratching incredulity." Professor Tribe's claim is not just that Bush v. Gore was wrongly decided, but rather that no reasonable person could defend the decision. That is an extraordinarily serious accusation against the Court, and I say that the accusation is itself outrageous.
On the equal protection issue, Professor Tribe mischaracterizes the applicable precedents (especially by inventing a non-existent requirement of intentional discrimination in fundamental rights cases), misstates the holding in Bush v. Gore (especially by imputing to the Court a demand that the rules for recounting ballots must be "precisely drawn" and "completely" uniform), and falsely accuses the Court of having forbidden the Florida court to attempt a constitutionally permissible recount on remand.
On justiciability, Professor Tribe has to my great satisfaction completely withdrawn the arguments that I called "spectacularly indefensible." Unfortunately, he has not returned to the position that he took as a litigator in Bush v. Gore, where he implicitly treated the case as justiciable. Instead, Professor Tribe has now invented yet a third theory, which conflates the legal doctrine of justiciability with the prudential considerations advanced by Justices Souter and Breyer (neither of whom claimed that Bush v. Gore was nonjusticiable). Professor Tribe's latest theory is entirely novel, and the Court committed no error in failing to think it up before he did. All nine Justices were right and Professor Tribe is wrong: Bush v. Gore was indeed justiciable under the applicable precedents.