INTRODUCTION :: As Akhil Amar reminds us, hundreds of law professors denounced the Bush v. Gore majority as propagandists who suppressed the facts and used their power “to act as political partisans, not judges of a court of law”; as he also notes, a few other law professors leveled similar judgments against the Florida judges whose decision triggered the U.S. Supreme Court’s review. Professor Amar does not openly endorse the most venomous accusations leveled against the Bush v. Gore majority, but he does attempt to show that the actions of the Florida judges “in general were legally defensible, and often quite admirable.” He also maintains that “the U.S. Supremes,” as he repeatedly calls them, had no legal basis for their decision and that three of them strategically joined an opinion that even they probably regarded as “implausible.”
If one knew only what Professor Amar tells us, it would be hard to resist the conclusions reached by two vitriolic professors whom he quotes at length: “[F]ive Republican members of the Court decided the case in a way that is recognizably nothing more than a naked expression of these justices’ preference for the Republican Party . . . [T]he court gave no legally valid reason for act of usurpation.”
Fortunately, the legal professoriate is not an Athenian jury, with the power to ostracize disfavored officials. These pundits are but self-appointed prosecutors in the court of public opinion. In that court, as Professor Amar says, “Facts matter.” Or at least they should. And when one looks at the facts, Professor Amar’s legal case collapses.
In the space allotted for my response, I will discuss a few of the most significant omissions, errors, and rhetorical misdirections in Professor Amar’s passionate assault on the Supreme Court. Nothing I say in this response is novel-it has all been on the public record for many years.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital