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year ago today the United States Supreme Court held in Bush
v. Gore that the partial statewide manual recount of undervotes
ordered by the Florida supreme court violated the Equal Protection
Clause of the 14th Amendment. The Court also held that because the
Florida court itself had held that under Florida law December 12
was the deadline in Florida for selecting presidential electors,
no time was left to conduct a new, constitutionally adequate recount.
The direct and foreseeable consequence of this decision was to secure
George W. Bush's election as president.
Bush
v. Gore set off a firestorm of criticism. For many Democrats,
including prominent law professors, the fires still rage and payback
time is now. Back in February, Yale's Bruce Ackerman counseled in
The American Prospect that in retaliation for the Court's
"constitutional coup" in Bush v. Gore, "when
sitting justices retire or die, the Senate should refuse to confirm
any nominations offered up by President Bush." The obstructionism,
many Democratic loyalists today believe, should extend beyond the
Supreme Court: Bush's nominees to the federal bench should also
be delayed or denied, partly in punishment for Republican treatment
of Clinton nominees, but also in significant measure in punishment
for Bush v. Gore. The underlying rationale is that
the appropriate response to the Court's flagrant political intervention
in Election 2000 is a flagrantly political response.
Was Bush
v. Gore a political decision? It depends on what you mean
by political. According to the vulgar critique, championed most
recklessly by
Alan Dershowitz and
Vincent Bugliosi but also espoused by leading professors of
constitutional law such as Ackerman and New York University's
Ronald Dworkin, naked political self-interest drove the Court's
five conservatives to halt the recount ordered by the Florida supreme
court. It was not, as the majority opinion stated, that in violation
of well-settled Equal Protection jurisprudence the Florida recount
in a variety of ways debased or diluted the weight of citizens'
votes. Nor was it as the majority held that under Florida law as
interpreted by the Florida supreme court (in response to a question
posed to it by the U.S. Supreme Court) no time was left to conduct
a constitutionally proper recount because December 12 was the outside
deadline for Florida to choose its presidential electors. All that
was window dressing. What really happened was that the five conservatives
invoked far-fetched arguments they couldn't possibly believe in
order to secure the presidency for a fellow conservative who could
be counted upon to nominate fellow conservatives to the Supreme
Court. This version of the criticism that Bush v. Gore
was a political decision has failed, and failed embarrassingly,
because it has neglected to restate accurately the Court's holding,
it has not grappled seriously with the majority's legal arguments,
and it has ignored the highly peculiar features of the partial and
selective Florida recount that the Supreme Court found unconstitutional.
More refined
and plausible criticisms of Bush v. Gore as improperly
political, rooted in the so-called political-question doctrine,
have come to the fore. In his dissent, Justice Breyer sketched the
lineaments of this line of criticism. First, "the Twelfth Amendment
commits to Congress the authority and responsibility to count electoral
votes." Second, in such "a highly politicized matter,
the appearance of a split decision runs the risk of undermining
the public's confidence in the Court itself." Third, "however
awkward or difficult it may be for Congress to resolve difficult
electoral disputes, Congress, being a political body, expresses
the people's will far more accurately than does an unelected Court.
And the people's will is what elections are about." Echoing
Breyer's criticism, Harvard's Laurence Tribe, who represented Vice
President Gore in the controversy, argued recently in The New
Republic that "despite the Twelfth Amendment's allocation
of the relevant decision (which electors to count) to Congress,
and despite the absence of reason to doubt that Congress could have
and would have done its job without the Court's help," the
Court intervened where it had no business. In so doing, "five
of the justices displayed their disdain for the messy processes
of democracy and their devotion to decorum and the appearance of
order even in the inherently indecorous context of choosing a president."
Conservatives too have found merit in such reasoning. In the November
Commentary, Gary Rosen contended there is a "strong
argument" that "under the Constitution and federal law,
it was the duty of other, more democratically accountable institutions,
to safeguard the integrity of the presidential election."
On reflection,
however, even the strongest versions of the critique from political
considerations of the Court's intervention prove at best inconclusive.
Consider first Justice Breyer's criticism that the Court should
have kept clear of the Florida controversy for structural reasons:
The Court arrogated to itself powers of another branch because the
decision of how to count electoral votes was committed by the Constitution
to Congress. In fact, the Twelfth Amendment, which authorizes Congress
to count electoral votes, and the Electoral Count Act of 1887 (Title
III of the U.S. Code passed in the aftermath of the Hayes-Tilden
controversy), which provides procedures for dealing with disputes
about contested electoral votes, may suggest that Congress has final
authority for resolving disputes about the validity of electoral
votes. But nothing in the Constitution or federal law gives Congress
exclusiveauthority for resolving all disputes that may arise
in the process whereby states select presidential electors. Does
anybody doubt, for example, that were a case to arise involving
a state supreme court that ordered a statewide recount that excluded
black voters or white voters or rural voters or city voters, the
Supreme Court would be justified in finding, indeed would be duty
bound to declare, a violation of equal protection?
Justice Breyer
also argued that the decision in Bush v. Gore was
improperly political in a prudential sense: The Court ought not
to have gotten involved because whatever decision it reached would
have exposed it to bitter political criticism, squandering its accumulated
political capital and diminishing its future effectiveness. In fact,
the Supreme Court declines to hear the vast majority of cases that
it is asked to review, and inevitably political considerations —
What does the nation need? What can the people bear? What can a
court, with its institutional strengths and weaknesses, hope to
accomplish? — influence the justices' decisions about which
cases to decide. Once they choose to hear a case, the justices may
bring the same practical considerations to bear in reaching a decision.
However, calculating the consequences of a legal decision on the
Court's political capital or reputation is a very imprecise science.
Contrary to the anguished warnings and dire predictions from dissenting
justices and prominent law professors, the data suggest that Bush
v. Gore has not caused the Court to lose legitimacy. Six
months after the decision, the June 2001 Gallup Poll showed a larger
fraction of the population giving the Court a high rating than in
June 2000, six months before the decision.
Finally, Justice
Breyer charged that Bush v. Gore was wrongly political
in a functional sense: The Supreme Court was ill equipped to gather
the pertinent information and poorly situated to articulate the
general principles that a properly legal resolution of the controversy
required. The trouble with this view, which has been embraced by
many in the legal academy, is that it ignores the extent to which
virtually all of the important controversies in Florida, and certainly
those which the Supreme Court reviewed, had from the early goings
been transformed into legal disputes. Put aside the lawsuits —
such as the challenge to the notorious butterfly ballot in Palm
Beach County and the complaint filed by Democratic loyalists in
Martin and Seminole Counties challenging overseas absentee ballots
— that never reached the U.S. Supreme Court. Both cases that
did stemmed from lawsuits filed by Vice President Gore that worked
their way through the Florida judiciary. During the protest phase
of the Florida controversy, the canvassing boards in Palm Beach
and Volusia County, along with the Florida Democratic party and
Al Gore, filed a lawsuit against Secretary of State Katherine Harris,
challenging the seven-day statutory deadline she sought to impose
for the conclusion of manual recounts. In the contest phase, Gore
filed a lawsuit challenging Secretary of State Harris's official
certification of Bush on November 26 as the winner of Florida's
25 electoral votes. In both, Gore lost the initial judgment. And
in both, the Florida supreme court, on appeal, reversed the trial
court and ruled in Gore's favor. In reviewing these decisions, the
U.S. Supreme Court was asked to consider whether the Florida court's
judgments were consistent with federal law and the Constitution.
And that is not in the first place a political question. It is a
legal question. Thus it is highly misleading for Justice Breyer
to contend that Congress was better suited to resolve the controversy
because it knows the people's will better and elections are about
the people's will. In fact, elections are about expressing the people's
will through legally established formal procedures, and the unelected
justices on the Court, by virtue of their training and institutional
role, are better suited and better positioned than the elected lawmakers
in Congress to say accurately what the law is and determine reliably
when it has been violated.
To argue that
Bush v. Gore was not a political decision is not
to deny that it was a decision with many political dimensions: The
Court intervened decisively in a national election; judgments about
the role assigned to the Court in our constitutional system likely
and with propriety influenced the justices' decision whether to
hear the case and how to rule; given that the next president would
appoint their successors or colleagues, all nine justices had an
awkward interest in the outcome of the controversy; and in the way
of hard cases, a fair examination of the Constitution, well-settled
law, and the facts invited the Justices to give room in their deliberations
to the political consequences of judicial intervention and the institutional
capacity of the Court to decide the issues presented to them in
a principled fashion.
This recognition
of the political dimensions of Bush v. Gore does not
imply that members of the majority in Bush v. Gore
repudiated law and engaged in politics to advance their partisan
preferences. Nor does it suggest that Justice Breyer's own puzzling
position that the Court should have stayed out of the controversy
even as he agreed in his dissenting opinion that the Florida court
had ordered a constitutionally infirm recount was politically driven.
By and large
our system of separated but also "connected and blended"
powers leaves political decisions to the political branches and
legal decisions to the judicial branch, while recognizing that there
are inescapably legal dimensions to politics and political dimensions
to the law. This is an important point that the critics have relentlessly
obscured. One of the reasons that Bush v. Gore was
a hard case is that the Court faced an essentially legal question
— whether a lower court had complied with federal law
and the Constitution — that was closely bound up with political
questions about the allocation of powers between Congress and the
Court, about the prudence of judicial intervention, and about the
effectiveness and equity of judicial remedies.
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