Reconsidering Bush v. Gore
The Florida Supreme Court was wrong, but so was the U.S. Supreme Court.
By Gary Rosen
Updated Nov. 7, 2001 11:59 p.m. ET
Indignation toward the Supreme Court has been a defining feature of American conservatism since at least the early 1960s, when Chief Justice Earl Warren and his like-minded brethren launched the judicial "rights revolution" that has continued, more or less unabated, up to our own day. With each expansive new ruling over the years--on obscenity, school prayer, the death penalty, busing, abortion and a host of equally inflammatory issues--conservatives have found fresh evidence of the justices' disdain not only for the limits of their own office but, more gallingly, for the views of the American people and their elected representatives. In a controversial 1996 symposium, the religious journal First Things went so far as to wonder whether this "judicial usurpation of politics" should be seen as the "end" of American democracy.
Where this question stands now, in the wake of the extraordinary events that brought the 2000 presidential election to a close, is unclear. Judging by the many books published in the past year--and especially in the past several months--on the legal aspects of the dispute over the Florida vote, the right is hardly alone any longer in entertaining serious doubts about the role that the courts play in our democracy, nor is the left alone in discounting such concerns.
To be sure, as matters unfolded in Florida after the vote a year ago today, conservatives--or, to be more precise, the supporters of George W. Bush--saw their longstanding fears about the imperial judiciary confirmed yet again. In a series of remarkably freewheeling decisions, the Florida Supreme Court, invoking the "will of the people" to trump what it called "a hyper-technical reliance upon statutory provisions," allowed or ordered manual recounts that were seemingly designed to give Al Gore every opportunity to overtake the slim official lead of his Republican rival. James Baker, Mr. Bush's chief spokesman in Florida, called it "a sad day for America and the Constitution when a court decides the outcome of an election." For the conservative Weekly Standard, the Florida justices had become, as the magazine's cover declared, "Our Robed Masters."
But within a matter of days the entire situation had been turned on its head, both politically and ideologically. In short order, the five-justice conservative majority of the U.S. Supreme Court--William Rehnquist, Anthony Kennedy, Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas-- intervened first to impose a stay on the recount and then to reverse the Florida high court, thus barring any further effort to discover votes among the disputed ballots. The endless wrangling about hanging, dimpled and pregnant chads was over, Mr. Bush was president-elect, and conservatives, who had spent weeks decrying the high-handed activism of judges, were elated.
Now it was the other side's turn to speak of a "stolen" election and to vent its fury at a purportedly out-of-control judiciary. Taking their cue from Justice Ruth Bader Ginsburg, who omitted from her opinion the "respectfully" that customarily softens the concluding phrase "I dissent," liberal commentators denounced Bush v. Gore as a "travesty" (Mary McGrory in the Washington Post), a "scandal" (Randall Kennedy in the American Prospect) and a ruling that lacked any "credible explanation" (Anthony Lewis in the New York Times). The "four vain men and one vain woman" of the court's majority were accused of having simply indulged their "self-interested political preferences" (Jeffrey Rosen in The New Republic), rendering a decision that was at once "illegitimate, undemocratic, and unprincipled" (Cass R. Sunstein in the Chronicle of Higher Education). In a full-page ad in the New York Times, 554 law professors--"teachers whose lives," in their own words, "have been dedicated to the rule of law"--declared that by acting as "political partisans, not judges," the justices had "tarnished" the legitimacy of the court.
There was, of course, an element of almost comic irony in these full-throated denunciations, coming as they did from intellectual quarters that have long rationalized or celebrated the overreaching of the American judiciary. Such self-righteous critics should themselves have cleaner hands. But it is not enough to answer a charge of hypocrisy with a charge of hypocrisy. The fundamental question, with all that it portends for our constitutional politics, remains: Were the justices of the Supreme Court right or wrong to play the role they did in the 2000 presidential election?
From the moment reporters were handed Bush v. Gore in the waning hours of Dec. 12, it was apparent that the case had deeply divided the Court. The decision consisted of an almost unprecedented six distinct opinions: an unsigned "per curiam" ruling by all five conservative Justices, a concurrence by the three most conservative of them, and separate but overlapping dissents by each of the four liberal justices--Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens.
The concurrence written by Chief Justice Rehnquist and joined by Justices Scalia and Thomas hinged on the issue of just how activist the rulings of the Florida justices had been. Though "comity and respect for federalism" would normally compel the justices to defer to a state court's interpretation of state law, Chief Justice Rehnquist wrote, the Constitution did impose certain limits when it came to the procedures for presidential contests. In particular, Article II provides that the electors of each state are to be selected "in such Manner as the Legislature thereof may direct" (emphasis added in the opinion). Thus it was that the election laws devised by the Florida Legislature took on an "independent significance," demanding a degree of deference that the state's highest court, in its various reworkings of that law, had failed to show. By the light of Article II, the court's most reliably conservative troika held, the Florida justices had "impermissibly distorted" the intention of the state's lawmakers.
The actual judgment of the court--the ruling that carried the force of law--lay, however, in entirely different constitutional precincts, in concerns about the "equal protection" guaranteed by the 14th Amendment. Here the conservative justices, now including the more centrist Kennedy and O'Connor, formed a united front.
Where the Florida Supreme Court had run into constitutional trouble, the five justices declared, was in ordering a recount whose lone instruction to election officials was to determine the "intent of the voter." In the absence of more specific standards, this open-ended rule had resulted in a range of abuses, with contested ballots treated differently not only "from county to county but indeed within a single county from one recount team to another." The mechanism set in motion by the Florida court failed, in short, to "satisfy the minimum [constitutional] requirement for non-arbitrary treatment of voters."
Nor was there time, according to the justices, to devise a new procedure, since the Florida Legislature (at least in the estimation of the Florida court) had meant to protect the state's presidential vote from congressional challenge by taking advantage of the "safe harbor" provision of federal law, the deadline for which, as the decision was announced, was just minutes away. For the violations now before it, the Supreme Court concluded, the only available remedy was to bring the whole contentious process to a halt.
For their part, the liberal justices were unanimous in rejecting the idea that the Florida high court had somehow usurped the role of the state Legislature. The rulings of the Florida justices may have been flawed--"other interpretations were of course possible," Justice Souter observed, "and some might have been better than those [that were] adopted"--but they certainly fell within the bounds of permissible interpretation. Furthermore, Justice Stevens maintained, Article II did not "create state legislatures out of whole cloth, but rather takes them as they come--as creatures born of, and constrained by, their state constitutions," a circumstance that, in this case, gave the Florida Supreme Court broad powers of review.
More complicated was the response from this side of the court to the majority's equal-protection claim. On this question the liberal justices split. Justice Ginsburg saw no evidence that the recount "would yield a result any less fair or precise" than the official count that preceded it. Justice Stevens pointed to the danger of "too literal" an interpretation of constitutional principles; after all, he wrote, if the recount was suspect on equal-protection grounds, so too was Florida's entire election system, which left "to each county the determination of what balloting system to employ--despite enormous differences in accuracy."
Justices Breyer and Souter, by contrast, agreed that the conduct of the recount raised serious questions about the unequal treatment of similarly situated voters. But their agreement with the majority went only that far, and still left them very much in dissent. As Justice Breyer stipulated at the outset, and as Justice Souter echoed in his own opinion, "The Court was wrong to take this case."
Moreover, having taken it and found a violation of equal protection, the court was obliged to send it back to Florida for resolution. As both Justices Breyer and Souter stressed, six days remained until the electoral votes absolutely had to be cast on Dec. 18--meeting the imminent "safe harbor" deadline, all four liberal justices insisted, was not in fact required by Florida law--and the state's high court deserved a chance, however fleeting, to devise the uniform standards now demanded of it.
The most curious feature of the reaction to Bush v. Gore among conservatives has been the widespread agreement on two seemingly contradictory propositions: first, that the majority's decision was a necessary vindication of the rule of law; second, that the equal-protection analysis upon which it relied was entirely unpersuasive. Thus, for Rich Lowry, the editor of National Review, the Supreme Court "had little choice but to overturn the Florida court," though the "reasoning in its hasty per curiam decision was so shabby, one can only conclude that the Court did the right thing for the wrong reason." Robert H. Bork, writing in The New Criterion, also found "serious difficulties" with the court's reliance on the equal-protection clause. As he (like Justice Stevens before him) pointed out, disparities like those in the Florida recount "have always existed within states under our semi-chaotic election processes." Nonetheless, Mr. Bork argued, the justices could not permit "the stealing of a presidential election," even at the cost of an "inadequate majority opinion."
As a constitutional matter, what redeems Bush v. Gore in the eyes of Mr. Lowry, Mr. Bork and most other conservative commentators is the concurring opinion of Justices Rehnquist, Scalia, and Thomas. Indeed, it is widely (and plausibly) assumed that the court's three conservative stalwarts, having failed to persuade Justices Kennedy and O'Connor that the Florida court had violated Article II by rewriting the state's election laws, held their noses and accepted the egalitarian abstractions of what became the majority opinion. Either way, after all, the recount would be stopped.
That the concurrence had the better argument is hard to deny. As Richard A. Epstein of the University of Chicago and Michael W. McConnell of the University of Utah make clear in their separate contributions to "The Vote: Bush, Gore, and the Supreme Court," a useful collection of essays by legal academics on both sides of the controversy, the "interpretations" of the Florida Supreme Court went far beyond what was required to make sense of the sometimes ambiguous or conflicting provisions of the state's election code.
In the fateful first stage of the litigation, the Florida justices transformed a portion of the law concerned with rectifying "an error in the vote tabulation"--a transparent reference to problems with the counting machinery--into a mandate to correct errors committed by voters in the casting of their votes. For good measure, they also ignored a straightforward statutory deadline for certifying vote tallies and replaced it with a much later cutoff date entirely of their own making, thus throwing into disarray the whole process for mounting a challenge to the election results.
In the second stage of the litigation (and largely to compensate for their earlier errors), the Florida justices went still farther down the road of arrogation, ordering a statewide recount of all "undervoted" ballots under the direction of a single circuit judge--an action neither contemplated by state law nor requested by Mr. Gore or Mr. Bush. In all of these proceedings, the basic effect of the court's rulings was the same: to annul the far-reaching discretionary authority of the county and state officials to whom Florida law explicitly assigns the supervision of elections.
This much ground and considerably more are covered by Richard A. Posner in "Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts," the only book-length defense of the ruling in Bush v. Gore yet to appear. For Mr. Posner--a federal appeals court judge, lecturer in law at the University of Chicago and perhaps the country's widest-ranging and most prolific legal thinker--it is not enough to demonstrate that the Florida court went badly astray, "butchering" the state's election laws in violation of Article II. As he argues, with characteristic verve and intelligence, there are still deeper justifications for the Supreme Court's intervention.
Judge Posner concedes that more Florida voters probably set out to support Al Gore than George W. Bush, and that the wider availability of user-friendly voting technology would very likely have sent the Democratic candidate to the White House. But this, he insists, is no defense for what the Florida Supreme Court did. In our representative democracy, with its concern for order and stability, an election is "a formal procedure, a statutory artifact," not "a public-opinion poll." What matters is not some inchoate "general will," à la Rousseau, but votes, and what constitutes a vote is determined by pre-established rules. By promulgating its own rules after the fact, Judge Posner argues, the Florida court was not perfecting the democratic system, as many have claimed, but undermining one of its fundamental pillars: that succession take place according to procedures that are "fixed in advance, objective, administrable, and clear."
In a similar vein, Judge Posner dismisses those who think that the Supreme Court should ultimately have remanded the case to Florida, allowing the state courts and legislature to resolve the election dispute. Florida was entitled to six more days, he acknowledges, but "a responsible recount could not have been concluded by then." In fact, the whole mess, with rival slates of Florida electors, would soon have found its way to the divided halls of Congress, where it would have led to paralyzing chaos. With a new president still unnamed by Inauguration Day, Judge Posner somewhat fancifully suggests, the office would have passed down the line of executive succession until coming to rest, for various reasons, on then-Secretary of the Treasury Lawrence Summers--thus making him our first Jewish President! "Eventually, with the nation's patience completely exhausted," he writes, either Bush or Gore would have prevailed in the House of Representatives, but his presidency "would have started behind the eight ball, with an irregular and disputed accession, an abbreviated term of office, and no transition."
For Judge Posner, these "pragmatic" concerns are paramount in evaluating Bush v. Gore, and form what he considers its "hidden ground." As he concludes, the majority's decision may have "damaged the Court's prestige, at least in the short run; but it did not do so gratuitously--it averted a potential crisis."
There is much to be said for these exercises in apologetics. As its defenders have rightly stressed, Bush v. Gore, whatever the defects of the ruling, did bring an orderly conclusion to an unsettling chapter in our national politics, and it did so, at least in part, on the basis of a credible argument about the Constitution's Article II.
In these crucial respects, the Supreme Court's election-ending decision is not, as some of its critics have suggested, the ideological mirror image of Roe v. Wade, the 1973 abortion decision that has become synonymous with liberal judicial activism. As many liberals themselves are now willing to admit, the ruling in Roe was essentially a piece of judicial legislation, with no grounding in constitutional text or history. More important perhaps, the abortion decision, with its cavalier dismissal of how the states themselves wished to resolve the issue, continues to roil our politics even now, some 30 years after it was handed down--a marked contrast to the quiet that, outside the law schools, quickly descended over Bush v. Gore.
Still, in at least one key regard, the comparison to Roe is not favorable to the present Supreme Court. Say what one will about the authors of the abortion decision, their reasoning in the case, such as it was, was not a surprise; it followed their own activist precedents with respect to the so-called right of privacy, and it reflected a judicial temperament that they had displayed many times before. In Bush v. Gore, by contrast, the five conservative justices performed what can only be described as an ideological somersault, embracing an equal-protection claim that was not only unpersuasive on its own terms but irreconcilable with the basic tenets of their judicial philosophy.
That is the burden of Alan M. Dershowitz's instructive if at times intemperate and wrongheaded book, "Supreme Injustice: How the High Court Hijacked Election 2000." For Mr. Dershowitz--a professor at Harvard Law School who, when not himself taking part in the Florida litigation, was busily offering his opinions on it to any and all media takers--the clearest indication of the justices' culpability is what he calls "the-shoe-on-the-other-foot test." As he sees it, "they would not have stopped a hand recount if George W. Bush had been seeking it." Acting as partisans, they sought a political end without regard to the ideological means.
In support of this claim, Mr. Dershowitz puts together a damning compilation of the conservative justices' previous rulings and statements on the question of equal protection. All of these reveal, as anyone familiar with their views would expect, a profound reluctance to assign the idea anything like the sweeping effect they gave to it in the Florida case. Typical of the excerpts is this, from an opinion by then-Associate Justice Rehnquist:
In providing the Court with the duty of enforcing such generalities as the equal-protection clause, the framers of the Civil War amendments placed it in the position of Adam in the Garden of Eden. As members of a tripartite institution of government which is responsible to no constituency, and which is held back only by its own sense of self-restraint, . . . we are constantly subjected to the human temptation to hold that any law containing a number of imperfections denies equal protection simply because those who drafted it could have made it a fairer or a better law.
And this, from Justice Thomas:
The equal-protection clause shields only against purposeful discrimination: a disparate impact, even upon members of a racial minority, . . . does not violate equal protection. . . . [W]e have regularly required more of an equal-protection claimant than a showing that state action has a harsher effect on him or her than on others.
As Mr. Dershowitz writes, the "glaring and dramatic inconsistencies" between these earlier opinions and the Florida ruling strike at "the core of everything these Justices have stood for over many years."
Nor have the more clear-eyed members of the left, despite their condemnation of the decision, failed to see the opportunity presented by the conservative justices' epiphany on the meaning of equal protection. In The Nation, the historian Eric Foner found a "silver lining" in the court's having "opened the door to challenging our highly inequitable system of voting." Harvard Law School's Lani Guinier, writing in the New York Times, invoked the decision to renew her call for dispensing with winner-take-all legislative districts and moving to a system of proportional representation, since the court had been explicit in "valuing no person's vote over another."
Indeed, taken to its logical conclusion, the notion of equal protection affirmed by the court in Bush v. Gore would draw into question virtually every aspect of the country's locally run, state-administered and highly decentralized electoral system--a point that the conservative justices themselves, confronted by a different set of litigants, could have been counted on to make. This may explain what is perhaps the most objectionable part of the majority's opinion. As if to confess their bad faith, the justices announced toward the end of the decision that they were not, in fact, playing for keeps. Because "the problem of equal protection in election processes generally presents many complexities," they wrote, "our consideration is limited to the present circumstances."
Alongside this extraordinary disavowal, Alan Dershowitz places the following passage from a 1996 opinion by Justice Scalia, in which the Court's most articulate conservative aptly described the institution's proper role:
The Supreme Court of the United States does not sit to announce "unique" dispositions. Its principal function is to establish precedent--that is, to set forth principles of law that every court in America must follow. As we said only this term, we expect both ourselves and lower courts to adhere to the "rationale upon which the Court based the results of its earlier decisions." . . . That is the principal reason we publish our opinions.
No less disturbing as a matter of judicial philosophy--and seeming partisan favoritism--was the Supreme Court's obvious unwillingness to let the election dispute work itself out in Florida or, if need be, in Congress. If judicial self-restraint means anything, it is that the justices should respect the prerogatives of the other branches of the state and federal governments, especially with regard to those "political questions," as they are known in legal circles, that do not clearly fall within the court's institutional competence and would needlessly involve it in partisan controversy. In such instances, the Justices should exercise what the legal scholar Alexander Bickel called, in his classic formulation, the "passive virtues."
In the Florida case, this would have required, at a minimum, letting the state's high court try to remedy the (supposed) violation of equal protection in its recount standards. Would this have resulted in the political chaos predicted with such flair by Richard Posner? Perhaps. But as he himself grants (and as other commentators on both sides of the political aisle have agreed), the "likeliest outcome of the remand that Justices Souter and Breyer wanted would have been abandonment of the recount when it became clear that it could not be completed, subject to appropriate judicial review, by December 18." Under this scenario, Mr. Bush would still have won--but his victory would not have been tainted by the peremptory action of the court.
More fundamentally, there is the question of whether the Supreme Court should have taken any action at all in the Florida dispute. Even the better argument made by the conservative justices, based on Article II, was, for all its force, without precedent. There can be no doubt that the intentions of the Florida legislature had been perverted, but this alone did not compel the court to take the case or to find an infraction of the Constitution, and concerns about federalism might well have counseled restraint. Moreover, in light of the potential conflicts of interest involved--with candidate Bush having repeatedly declared his admiration for Justices Scalia and Thomas and the justices themselves having an obvious stake in who might be appointed to join them in the future--the court would perhaps have been well advised, in effect, to recuse itself.
Had this happened, we now know, Mr. Bush would almost certainly have retained his lead. As recounts conducted after the election at the behest of news organizations have shown, even the more open-ended counting standards advocated by Democrats and accepted by the Florida court would not have provided enough votes to put Gore ahead. Bush would have made it to the White House on his own.
Needless to say, the justices of the Supreme Court had no way of knowing this as they considered whether to intervene (nor should it have mattered, if their concerns were exclusively of the constitutional variety). What they did know--and what should have furnished the strongest argument for holding back--was that, under both the Constitution and federal law, it was the duty of other, more democratically accountable institutions to safeguard the integrity of the presidential election. The Florida Legislature was prepared to act, and so too was Congress, if disagreement among the branches of the state government had resulted in the naming of separate Republican and Democratic slates of electors.
Had it come to this, the scene on Capitol Hill would certainly have been partisan, and perhaps even ugly. But as we learned from the impeachment proceedings against President Clinton (and as we have had occasion to see again in the wake of the terrorist attack on Sept. 11), our politicians are capable during times of crisis of conducting themselves with the necessary sobriety and seriousness of purpose. Though Judge Posner is probably correct that "whatever Congress did would have been regarded as the product of raw politics," the same has been said, with some reason, about the court's settling of the Florida case--and politics is not supposed to be the court's business.
Why this should be so was well stated more than a century ago by the sponsor of the Electoral Count Act, the law under which Congress would have considered the Florida dispute. As Sen. John Sherman noted in introducing the measure--a belated response to the fiasco surrounding the Hayes-Tilden presidential contest of 1876--some members of Congress had wished to involve the Supreme Court in the process:
But there is a feeling in this country that we ought not to mingle our great judicial tribunal with political questions, and therefore this proposition has not met with much favor. It would be a very grave fault indeed and a very serious objection to refer a political question in which the people of the country were aroused, about which their feelings were excited, to this great tribunal, which after all has to sit upon the life and property of all the people of the United States. It would tend to bring that court into public odium of one or the other of the two great parties.
Naturally enough, much of the bitterness arising from the 2000 election has since evaporated, especially as the country has turned of late to decidedly more urgent matters. But American political life will gradually revert to something like its former state, and when it does, it is unlikely in the aftermath of Bush v. Gore that either of the "great parties" will see the Supreme Court in the same light.
The Democratic Party, of course, has never been well disposed to the court's current majority, and has fought energetically--often unfairly--to keep other conservative judges off the bench. But the critique of the conservative justices has previously been ideological; their ideas were "extremist," their view of the Constitution unacceptably narrow. Now, as never before, liberals have at their disposal the argument that has long served as a rallying cry for conservative critics of the Warren and Burger courts: that the justices are not just mistaken but, in some sense, corrupt, having forgotten the limits of their office.
Perhaps more profound may be the effect on Republicans and conservatives, who, one suspects, will find it difficult to continue avowing their old judicial principles with a straight face. Phrases like "judicial restraint" and "strict construction" may not sound the same for some time. Conservatives will thus be hampered in resisting what may be, in due course, the left's dominant reaction to Bush v. Gore: not second thoughts about its own history of judicial activism, but a renewed commitment to using the courts as an engine of social change. After all, if the judicial gloves are off, they are off for everyone.
The great shame in all this is that the 2000 election might have turned out very differently for the U.S. Supreme Court and our constitutional politics. Given the opportunity to decide who would be President, the conservative Justices, in the service of long-held principle, might have done what members of the high court have always found it difficult to do in the face of society's most pressing concerns and their own strongly held preferences. They might have passed.
—Mr. Rosen is managing editor of Commentary, in whose November issue this article appears, and author of "American Compact: James Madison and the Problem of Founding" (University Press of Kansas, 1999).
