REVIEWSrnSome Dare Call It Justicernby Stephen B. Presserrn”Justice is a contract of expediency, entered upon to prevent menrnharming or being harmed.”rn— Epicurus, AphorismsrnThe Betrayal of America: How thernSupreme Court Undermined thernConstitution and Chose Our Presidentrnhy Vincent BugliosirnNew York: Thunder’s Mouth Press;rn166 pp., $9.95rnSupreme Injustiee: How the HighrnCourt Hijacked Election 2000rnhy Alan M. DershouitzrnNew York: Oxford I’n/Vers/’h’ Press;rn240 pp., $25.00rnBreaking the Deadlock:rnThe 2000 Election,rnthe Constitution, and the Courtsrnby Richard A. PosnerrnPrinceton: Princeton University Press;rn266 pp., $24.95rnAccording to leading members of thernAmerican law professoriate, the U.S.rnSupreme Court’s decision, on Decemberrn12, 2000, in Bush v. Gore was “lawlessrnand unprecedented,” “not worthy of ‘respect,'”rnfeatured “sickening hpocrisyrnand insincere constitutional posturing,”rn\as “a disgrace,” “illegitimate, undemocratic,rnand unprincipled,” “egregious,” “arnslcight-of-hand trick,” and “quite demonstrablyrnthe worst Supreme Court decisionrnin history.” Off the wall as this criticismrnmay be, it is mild compared to thatrnleveled at the Court by Vincent Bugliosirn{whose claim to fame is that he succcss-rnStephen B. Presser is the legal-affairsrneditor for Chronicles and the RaoulrnBerger Professor of l£gal Histor’ at thernNorthwestern Dniversit)’ School of Law.rnfulh’ prosecuted mass-nuuxlerer CJharlesrnManson) in a slapdash papcdxick consistingrnmainly of notes and emendations tornhis article in the Nation (Fcbruar 5) entitledrn”None Dare Call it Treason.” Thernbook features a coer with mock policernnuig shots of fi e Supreme Court justices.rnThose fie. according to Bugliosi,rn”deliberateK- and knowingly decided tornnullify the otes of the SO million Americansrnwho oted for Al Core and to stealrnthe clccHon for Bush.” “The stark realit}’,”rnBugliosi continues,rnis that the instihition Americansrntrust the most to |)rotect its freedomsrnand principles committedrnone of the biggest and most seriousrncrimes this nation has ccr seen —rnpure and simple, the theft of thernpresidenc.rnIf this was indeed theft, he concludes,rnthen “by definition, the perpetrators ofrnthis crime ba-c to be denominated crim-rnIf ou loe trial lawycrs, hate GeorgernBush, and want some amnumition tornargue that Justices Rehnquist, Scalia,rnKennedy, Thomas, and O’Connor belongrnbehind bars, this acerbic litdc rant isrnfor vou. Bugliosi does a fine job spinningrnccn,’ fact and circumstance in Al Core’srnfavor, but his unbalanced account is notrnhelpful if vou rcalK want to knowrnw hcHier the justices actualK did trash thernrule of law last car.rnWdiat thc did in their December 12 decisionrnw as to sto]3 the Florida recount effortrnand hand the presidential election tornCcorge W. Busli. Was this a betraval of thernConstitution? \li’ would anybody thinkrnso? The problem, as Bugliosi has fingeredrnit, is that the reasoning of the Court’s perrncuriam opinion—in which, b’ Hie wa’,rnsc’cn justices (not live, as Bugliosi, Dershowrnitz, and most others \ould hac us belierne) joined —u’c/sdeepK flawed. Per curiamrn(“for the court’) opinions are unsigned.rnRumor has it tliat one of flic Court’s sw ingrnjustices, .^nthon’ Kennedv, was Hie auflior.rnIn an) case, no one will own up to it,rnperiiaps because tlie per curiam is more arnpolifical act of will than it is a reasonedrnelaboration of consfitufional law. Doesrnfliis amount to a national disgrace? To answerrnthat question, we hae to dirh’ ourrnhands in tlic mire of eontemporaiy constitutionalrnexegesis, Florida election law, andrnpunch-card technolog-. This is not a taskrnfor the squeamish.rnThe per curiam opinion declared diatrnthe Florida Supreme Court, in orderingrna hand recount of the manv thousands ofrnballots in Florida for which the votingrnmachines could not tabulate a vote, iolatedrnthe I4di Amendment of the U.S.rnConstitution, which forbids an’ staternfrom denving unv of its citizens “thernequal protection of the law.” The denialrn2fi/CHRONICLESrnrnrn