Carnival of Mirrors: Laurence Tribe's 'Unbearable Wrongness'
Abstract: 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permissible recount on remand.On justiciability, Professor Tribe has to my great satisfaction completely withdrawn the arguments that I called spectacularly indefensible.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.
Summary (1 min read)
- 6 and whether the Court was legally prohibited from deciding the case at all.
- That is an extraordinarily serious accusation against the Court, and I say that the accusation is itself outrageous.
I. EQUAL PROTECTION
- First, Professor Tribe ignores the distinction that I and all the Justices have drawn between what the authors may think is the "original meaning" of various constitutional provisions and what the Court's cases say they mean.
- 42 Professor Tribe's effort to suggest otherwise requires him to conflate the doctrine of nonjusticiable political questions (which Souter and Breyer did not invoke) with arguments (which Souter and Breyer clearly did make) about the proper exercise of judicial discretion.
- As in most important constitutional cases, there was room in Bush v. Gore for reasonable disagreement about the best interpretation of the applicable precedents.
- I think it was a very easy case, but my strong objections to Professor Tribe's position are not based on that conclusion.
- Rather, I object to the extravagant terms in which he has denounced the Court, and to his claim that no reasonable defense of the Court's decision is possible.
- Justice Ginsburg did allude to the "traditional doctrine," but only in criticizing Chief Justice Rehnquist's Article II analysis in his separate concurrence.
- See Tribe, Unbearable Wrongness at 605 (cited in note 2), where a careful review of the quotation shows that Justice Breyer did not say that it was "legally wrong" for the Court to resolve the equal protection issue.
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Frequently Asked Questions (1)
Q1. What have the authors contributed in "Carnival of mirrors: laurence tribe's "UNBEARABLE WRONGNESS"" ?
In the very limited space that the editors have allotted, I could not possibly offer point-by-point responses to his many mischaracterizations of what I said in the two articles that he attacks.