Bench Memos

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Loving and Hating Bush v. Gore


Also at today’s New York Times, that specialist in speciousness Adam Cohen has a piece on the legacy of the Supreme Court’s ruling in Bush v. Gore. Poor Mr. Cohen is terribly confused, but then he is not alone. On the one hand, he really hates the “antidemocratic result” of that case (I think he meant to say “anti-Democratic”), but on the other he celebrates the possibilities of the ruling’s impact, saying that “it should mean that states cannot provide some voters better voting machines, shorter lines, or more lenient standards for when their provisional ballots get counted,” as happens in some states now.

Cohen perpetuates one of the favorite myths of the Bush v. Gore critics, that the Court attempted to issue a decision good for one day and one train only, with no future as a precedent. But that’s just not so. Here is how Cohen characterizes it (note well what is and what is not inside his quotation marks): “The majority opinion announced that the ruling was ‘limited to the present circumstances’ and could not be cited as precedent.” The five words quoted do indeed appear in the per curiam opinion of the Court, but they are not part of any diktat that the holding that day “could not be cited as precedent,” as Cohen has it in his own words. In fact, properly heeding a ruling’s effect as a precedent for any subsequent case always involves attention to the “circumstances” of the earlier holding, to see whether the fact pattern and legal issues are similar enough in the newly arising case.

But here is the context from which Cohen lifts the five words:

The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.

Cohen complains at one point about an en banc Ninth Circuit ruling that, in his view, “dispensed with Bush v. Gore” as though it found “the whole subject distasteful.” But if he means the ruling I think he does, the court simply quoted the sentence that begins the second paragraph above and concluded that the question before it was the same one identified there.

One can argue about whether the Bush v. Gore opinion fences in the principle of equal protection in voting rights too tightly for the constraints on its impact to be logically sustained in future cases. If uncontrolled diversity of procedures is impermissible in a statewide recount undertaken for remedial purposes by a “state court with the power to assure uniformity,” then maybe it makes sense to extend the principle of uniformity to such matters as differing ballot-machine technologies. Or maybe not. But it is not an illegitimate attempt to ditch the principle of stare decisis for the Court to say, in effect, “Pay attention closely now. A principle is at stake here in an obvious way that will not necessarily be at stake in subtler, more complex circumstances in the practical world of routinely running elections.” That is not the same thing as saying, “Do not treat this ruling as a precedent in any case in the future.” Not even if Adam Cohen says so.

For the record, I have never admired the reasoning in the per curiam opinion in Bush v. Gore—the handiwork of Justices Kennedy and O’Connor, and for that reason alone highly suspect. I have always found the concurring opinion of Chief Justice Rehnquist (joined by Scalia and Thomas) infinitely preferable. But even Anthony Kennedy and Sandra Day O’Connor can get a bad rap occasionally, and the suggestion that they wanted to give the election to George W. Bush and then put their ruling in a precedent-free zone is just that.

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