Saturday, January 27, 2007

Greenburg on O'Connor on Bush v. Gore

I've ordered my copy of Jan Crawford Greenburg's new book on the Supreme Court, but since it hasn't yet arrived I've been contenting myself with the various reviews of the book, including David Garrow's in the LA Times. He's certainly a big fan, as are many other reviewers. One thing Garrow notes about the book is the incredible access Greenburg was able to get, both to current and former members of the Court and to former clerks. Justice O'Connor, for example, apparently spoke "on the record" with Greenburg for four hours. And it looks like she actually said some meaningful things. Garrow summarizes a few of the rather blunt things Greenburg reports O'Connor to have said about Bush v. Gore, including that the Florida Supreme Court was "off on a trip of its own." But that's not the most striking thing O'Connor said about the case. For that, check out this passage from Garrow:
O'Connor admitted to Greenburg that the written opinion was not "the Court's best effort" and that "given more time, I think we probably would've done better" in explaining the decision, but "it wouldn't have changed the result."

Everyone knows, of course, that the Court decided Bush v. Gore under incredible time pressure, and everyone also knows that the per curiam majority opinion wasn't "the Court's best effort." Wearing our realist hats, I suppose most or all of us also would have suspected that, no matter how long the Court had to decide the case, the outcome probably wouldn't have changed. But that last point is not something one would expect a member of the Court to acknowledge. When speaking publicly, members of the Court typically make an effort at least to pretend that reasoning itself matters, and that outcomes are not determined before the reasoning process has run its course. Members of the Court thus tend to deny that their decisionmaking process is outcome-driven, where they first settle on the desired outcome and then simply spend whatever time remains crafting the best defense of an outcome to which they are unalterably committed. Reflective reasoning, members of the Court typically say, matters. Contemplation can lead people to change their minds.

I'm relying here on Garrow's report of Greenburg's account of O'Connor's statement, and so it's certainly possible that something has been lost or misconveyed in the retelling. But if the above-quoted passage is accurate, it looks like O'Connor came perilously close to abandoning this commitment to reflective reasoning in her account of Bush v. Gore. (It's possible, I suppose, to read her quote as suggesting that the Court had actually thought its way through every possible argument and counter-argument in the case, but because of limited time wasn't able to write it up as well as the Justices would have liked. But I think that's implausible. There really wasn't enough time for anyone on the Court to think their way through every aspect and implication of the case, and pretty much all the opinions in the case reflect that fact.)

I don't mean to say that we should all cling to the fiction that the Court should or does decide cases without any attention to the consequences of certain outcomes. That would be both unrealistic and undesirable. But there's a difference between incorporating some consideration of consequences into one's reasoning and saying that (1) the Court really didn't have enough time to do its best work in a particular case, but that (2) even if it had had more time to think harder and more carefully about the case, there's no way the outcome would have changed.