So What’s Scalia’s Game? Lawyers Want to Know

Talk about a Constitutional crisis: When the Supreme Court

threw out a Georgia law that forced Indians off lands given them by treaty, the

Southern lawmakers simply pretended the decision didn’t exist. All eyes turned

to the President, Andrew Jackson, to see if he would support the federal

judiciary. Jackson, no great fan of the Court and its famous Chief Justice,

thundered: “John Marshall has made the decision-now let him enforce it!”

How times have changed. A

century and a half later, two would-be Presidents were reduced to supplicants

as they waited anxiously-helplessly, really-for the Court to decide, in

essence, which one of them would get the keys to the White House. Presidents

from Jackson to Franklin Roosevelt to Ronald Reagan were accused of

politicizing the judicial process. Now, after a quarter-century and more of

judicial activism, the Supreme Court finds itself adjudicating the political


On the fateful day when Antonin Scalia persuaded four of his

colleagues to stop the Florida re-count, thus setting in motion events that

could lead to a Court-appointed Presidency, the nation’s highest court put its

reputation and its credibility in jeopardy. At least, that’s the view of many

New York lawyers, who were stunned by the Court’s decision to re-enter the

Florida fray.

“I admire the Supreme Court, but this time they totally blew

it,” said Stephen Case, a partner at Davis, Polk & Wardwell, after the

Court halted the re-count. “They sanctimoniously intoned, in opinion after

opinion, the necessity of deferring to state law and minimizing the role of

federal government, and then all of a sudden they do a switcheroo-and it


Rick Kurnit, a partner at Frankfurt, Garbus, Kurnit, Klein

& Selz, agreed: “The Supreme Court has certainly used up a good deal of its

capital in pursuing result-oriented justice as opposed to following the law ….

I think Scalia made a political judgment that since a [George W. Bush

Presidency] is the way it’s going to come out, we should cut [the process] short.”

But even with the court’s flaws exposed, most feel the

outcome will be accepted by the public.

“With the ups and downs of the process … no one should

lose sight of the fact that the system is working,” said Martin Pollner, a

partner at Loeb & Loeb who worked at the Justice Department under Robert F.

Kennedy. “We don’t have rebels in the streets, and we should all be assured

that no matter what the Supreme Court decision will be, we will all live with

it and move on.”

But some of Mr. Pollner’s colleagues are finding it hard to

do just that.

Before the intervention, most lawyers would have agreed with

former Governor Mario Cuomo’s assessment of the judiciary, particularly the

high and mighty Supreme Court. “Between politicians and judges,” Mr. Cuomo said

before the decision, “who do you have more confidence in?”

The answer would have been judges, but Mr. Scalia’s opinion

and the Court’s action have lawyers reconsidering that answer. Morton Fry, an

intellectual property lawyer of counsel to Stairs, Dillenbeck, Finley &

Rendon and co-chair of Lawyers for Gore-Lieberman, went so far as to compare

the Supreme Court to John Sweeney, the Republican Congressman from upstate who

admitted to instructing allies to organize the chaotic protest that preceded the

Miami-Dade County canvassing board’s decision to halt any re-counts of the

Presidential ballots.

“Are they simply going to shut down the process?” Mr. Fry

asked of the Supreme Court justices. “Or are they going to be helpmates to the

process? Is the Supreme Court here to help out the people’s vote, or is it

simply another person playing games with the process, like Mr. Sweeney?”

The bulk of the

accusations of partisanship and questionable motivation has been directed at

Justice Scalia. Mr. Bush already has referred to him as the ideal justice,

which didn’t enhance his aura of objectivity. Then there was the somewhat

sticky issue of his son being a partner at Gibson, Dunn & Crutcher, the

same firm that is home to Bush lawyer Theodore Olson. Mr. Kurnit accused Justice

Scalia of possibly “campaigning for the chief justice slot, which would seem to

be his reachable expectation.”

Bob Hallman, a litigation partner at Cahill, Gordon &

Reindel, said Justice Scalia’s opinion was “intended to protect Bush from the

possibility that the votes might be counted …. If there was ever a political

objective, and a political assessment and a political purpose, that was it. I

found it disturbing that a Supreme Court justice would use blatant political

reasoning to justify issuing a stay.”

Disturbing? Perhaps.

Surprising? Well, maybe not. As Larry Lorber, a partner at Proskauer Rose

pointed out, “The notion that the Supreme Court justices are political neuters

is absurd. They’re all appointed by politicians, and they all didn’t come out

of thin air.”

Clubhouse Lawyers

No, they didn’t, and they

never will. Judges are either appointed by elected officials or, as in the case

of New York Supreme Court justices, they run for election themselves. And that,

of course, means that they are intensely political people. The famously complex

relationship between the Brooklyn bench and the Kings County Democratic

Committee should put to rest forever the notion that judges, in Mr. Lorber’s

words, “come out of thin air.” No, indeed: The air is quite thick-with

politics-at the Thomas Jefferson Democratic Club in Brooklyn, the onetime home

base of many a Brooklyn jurist.

Why are so many lawyers down on the Court? To begin with,

there’s the very public nature of the justices’ disagreement. Mr. Lorber reduced

Justice Scalia’s concurring opinion and Justice John Paul Stevens’ strongly

worded dissent to a “public food fight” that amounted to nothing more than

“tough-talking back and forth at the highest level you can get.” When that

tough-talking was conducted behind the bronze doors of the Supreme Court

building, it only added to the mystique and majesty of the Court. But now that

every argument is subject to instantaneous scrutiny, the Supreme Court has lost

more than a little of its aura. As Leonard Garment, counsel to President Nixon

and author of In Search of Deep Throat ,

put it, “Democracy under a microscope is messy.” To say the least.

The lawyers may have come away from this long process with a

lower opinion of the Supreme Court, but-perhaps not surprisingly, for reasons

ranging from collegiality to shared opinions-their view of David Boies hasn’t

changed. If anything, they think even more highly of him. Mr. Pollner watched

with some amazement as Mr. Boies was transformed into a media superstar. “One of

the fascinating aspects of new technology is how a case can [transform] someone

instantly into an international celebrity,” he said. “Clarence Darrow took many

years to accomplish what today has happened in 30 seconds.”

In the view of his admiring colleagues, Mr. Boies waltzed

into the U.S. Supreme Court on Dec. 11 after a mere 48 hours of preparation and

more than held his own. It was not the performance of his life-Justice Scalia

was tough on him, and Mr. Boies at times appeared to be derailed by his questions-but

it was still vintage Boies, balancing straight talk and sound bites,

preparation and press-time.

“I’m plenty jealous,” said Richard Emery, a partner at

Emery, Cuti, Brinckerhoff & Abady, “but nobody can take anything away from

him …. He’s a triple threat-a trial attorney, an appellate attorney and a media

attorney. And he may win. If he loses, he’ll have done more than any attorney

could be expected and done it with aplomb.”

Not everybody, it should

be said, has come away convinced that the Supreme Court has foolishly wasted

its reputation for impartiality. Robert Giuffra, a partner at Sullivan &

Cromwell and a former law clerk to Chief Justice Rehnquist, thought the attacks

on the Court were poorly reasoned. “One of the really unfair things about this

is that people try to view the Supreme Court as a super-legislature,” he said.

“The Supreme Court applies the Constitution, they apply rules, they have to

explain their reasons in their decision. It would be a tragedy if people viewed

the Court as just another partisan branch of government. My old boss, Chief

Justice Rehnquist, cares very deeply about history.”

And John Feerick, dean of

Fordham Law School, expressed his optimism as well: “I guess maybe because I’m

an idealist, I think a decision of the Court does represent the best thinking

of the institution with respect to the problem at hand. I have a hard time

putting a label on the Supreme Court’s decision as a political decision.

There’s no formula to deal with the motivation.”

But that won’t prevent people from trying to come up with

one. So What’s Scalia’s Game? Lawyers Want to Know