Alan Dershowitz is a professor at Harvard Law School as well as a commentator, author, and practicing lawyer. His website is www. alandershowitz.com.

Conducted by Matthew Ellison

In a blog entry on the Huffington Post in September 2005 after the death of Chief Justice Rehnquist, you wrote that Rehnquist “set back liberty, equality, and human rights perhaps more than any American judge of this generation.” What about Rehnquist in your mind earns him this not-so-complimentary distinction?

Everything. He was one of the worst people, in terms of his values, ever to serve in any position of high authority in the United States. He was essentially a statist; in the 1930s, the word fascist would have been an appropriate one. He almost never ruled in favor of the individual, but always in favor of the state. He did not believe in equality. In his personal life, he had a restrictive covenant clause for one of his homes prohibiting its purchase by Jews. As a young man, he tried to keep blacks and Latinos from voting. He did not believe in Brown v. Board of Education. Had he been a German judge in the 1930s, he would have been “a good German.” He abhorred a civil libertarian value system. He was just wrong about everything. Almost every other justice in history has been at least on the progressive side of some issue. But not Rehnquist. You’d really, really be hard pressed to find him on the right side of any issue except when pressured by the rest of the Court and by his role as chief justice.

Do you think Chief Justice Roberts will be any better?

Much better. There’s no comparison. Roberts is a very decent man. He believes in equality. He practices equality. He would never do the things that Rehnquist did. Even though Rehnquist may have been his mentor Roberts served as his law clerk they are as different as two human beings could possibly be.

In the January/February issue of the Atlantic Monthly, Chief Justice Roberts said, “I think that every justice should be worried about the Court acting as a Court and functioning as a Court, and they should all be worried, when they’re writing separately, about the effect on the Court as an institution.”  Do you think this new Chief Justice will be successful in creating greater unanimity in what appears to be a clearly divided Court?

Lack of unanimity is not the problem; it’s a symptom of the problem. The problem is Bush v. Gore, in which the Supreme Court proved itself to be a partisan political institution that voted along party lines. If the Court is going to vote along party lines, and not apply the law but just apply its preference for who they would like to see as president, then it’s much better to have divided opinions than united ones. You’re going to get united opinions when the Court stops being political and starts applying the law equally regardless of who the litigants are.

Your book Supreme Injustice: How the Court Hijacked Election 2000 reveals in its title your belief that the Supreme Court played an inappropriate political role in Bush v. Gore.

Inappropriate way, way understates it. Corrupt understates it.

Do you see this as an isolated incident in which the Court was overly political, or do you think a more pervasive problem exists?

It was the worst of many, many, many very bad decisions. It was the worst of them because it wasn’t only political and ideological, it was partisan. Had the shoe been on the other foot and Gore had been ahead by 500 votes, all five of the justices who voted for the stay would have voted against the stay. All five of the justices who found an equal protection problem would have laughed and mocked the equal protection problem. It was the worst example of partisan politics in the history of the Supreme Court. But there have been many, many other terrible examples of the Court changing law to fit ideology.

I remember, back in 2000, reading an article about Sandra Day O’Connor’s comments on the night of the election, when Gore was ahead. It reported that she was frustrated because she wanted to retire under a Republican president. Should Justice O’Connor still have participated in this case?

She never should have been appointed to the Supreme Court in the first place. She was a partisan hack, and she remained a partisan hack all through her years on the Court. No one will remember a single O’Connor opinion all they’ll remember is her votes. She was a politician on the Court. When she first got on the Court, she invited Republican donors to her chambers for $25,000 to give them briefings on how the Supreme Court works on the inside. In her first couple of years, the Republican Party sent her a letter saying that they were making gains in trying to recruit Democrats in Arizona to the Republican Party. They asked her to please help by writing a letter on Supreme Court letterhead saying that the United States is not a democracy but is a Christian nation. And she obliged and wrote a letter on Supreme Court stationery saying that there are three opinions holding that the United States is a Christian nation. She was wrong about all three of them. And that letter was then used to help the Republican Party gain power.

What she did in Bush v. Gore was only a symptom of a much more acutely pervasive Republican partisanship that she showed on the Court. On the night of the election, she walked off in a huff, saying, “This is terrible,” when she saw that Gore had won Florida according to early returns. She then lied to a journalist about it, saying that she didn’t mean it was terrible that Gore had won she meant it was terrible that the media were projecting election returns before the polls had closed. It was clearly learned later she had no idea that polls were still open in the western tip of Florida. Had she said that under oath, she would have been guilty of perjury.
Then, another thing happened. At a dinner at the home of a prominent Republican, an official with the Republican Party in Arizona, when the phone had rung during the dinner, came back from the call and said, “I just got a call from Sandy,” referring to Sandra Day O’Connor, “and she told me ‘we have it worked out.’” And he put up a ‘V’ sign for victory, indicating that O’Connor had called a leading Republican, giving him news that the Court would give the presidency to Bush. She is just a political hack, a partisan political hack. She was appointed to the Court only because she was a woman. In a state not known for its judiciary, she was not known as a particularly good judge. And she was not a particularly good justice. She was very influential, but law professors don’t assign her positions because of their brilliance.

The role of the Senate in confirming judges and justices has been in the spotlight in recent years, with the hubbub over the federal judges and the ‘nuclear option’ and then again with the two Supreme Court confirmation hearings. At the center of the debate seems to be the question of what is relevant in the Senate’s decision-making. What are your thoughts?

One of the early writers about the Constitution essentially said that the rules of the Senate are determined by the rules of the president. If the president appoints a partisan, it should be opposed on partisan grounds. If the president appoints an ideologue, it should be opposed on ideological grounds. If the president appoints on regional basis, then it’s perfectly appropriate to oppose it regionally. But if the president picks a merit appointment, then the only basis should be opposition based on merit, and I would like to see merit appointments, and the only criteria be on merit. One of the reasons I did not oppose Governments don’t have rights; individuals have rights. The Supreme Court should be a court which primarily vindicates the rights of individuals who don’t have access to the political process and to the other branches of government disenfranchised individuals, whether they be alien people or people who are politically unpopular, such as atheists, communists, or extreme right-wingers. That is the theory of checks and balances, and the Court has abrogated its role and become a court that increases the power of the executive, ceasing to play its historically important role as a check and balance on the executive and legislative branches. Most Democratic senators and congressmen don’t understand this, and they can’t effectively make their own case. They just get into food fights about who’s more judicially activist.

In recent years, Supreme Court nominees have come almost exclusively from the federal judiciary. This was not always the case, as many former justices came from political backgrounds, such as, to name two notable examples, Chief Justice Taft, a former president, and Chief Justice Warren, a former governor of California. What effect do you think this trend has had on the nature of the Court?

The Supreme Court has become a very impractical court. For example, until Alito was appointed, none of the justices had any real experience in criminal law, and practically half their docket was criminal law. And the opinions were very often absurd, just unrealistic. Forget about right-left, they just didn’t know what they were talking about because none of them had real experiences Souter, a little bit but mostly, the justices had no real experience in criminal courts, which shows, and no real experience in politics. When the Supreme Court 9-0 ruled that a president has to answer depositions during the course of a lawsuit while he’s president, a lot of people thought that reflected a lack of real-life experience. These are ivory tower former judges, some of them former law professors, quite a few of them former law professors, good students, that kind of thing. You need a much more balanced Court. The Court should have justices of various political backgrounds, not just different racially and by gender, but by experience.

As someone involved in the O.J. Simpson case, you know the effect the media can have on judicial proceedings. Do you think Supreme Court sessions should be videotaped?

Absolutely. And they should be broadcast live. The public has the right to see its courts in operation; Bush v. Gore was virtually broadcast live, and if that case can be, I don’t see why any other case shouldn’t be. The public would enjoy seeing their Supreme Court in action, and it wouldn’t have any influence on the outcome of cases.

Finally, the question always asked of Supreme Court nominees: Who are your favorite all-time justices, and how do you think their wisdom can be applied to the Supreme Court today?

My favorite all-time Supreme Court justice it’s not even a close call would be Louis Brandeis. He was the most innovative, most creative, most interesting justice. Remember that he was almost defeated. The rampant anti-Semitism of the time turned many of the most distinguished lawyers in America against him, including Taft and others. Many of the leaders of the bar couldn’t stomach the idea of a Jew on the Supreme Court. He emerged as the greatest justice in the history of the United States.
The most influential justice was probably John Marshall. The most interesting justice in many ways was Thurgood Marshall interesting in terms of his background and the impact he had on the Court, though he was not a great legal scholar by any means. It really depends on what you mean; there are about ten different categories that I could give you the best in, you know, the Letterman ten best list.
But the worst are easy. And by the way, to show you I’m not partisan, on the list of the worst ten have to be several of the cronies appointed by Harry Truman. He had the worst record of judicial appointments of any president in modern history, even though he’s now regarded as a good president. But his judicial picks just unbelievably mediocre.
 

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