12/11/00 6:05 p.m.
The Equal-Protection Card
The worst grounds may be the best.

By Michael Greve, the John G. Searle Scholar at American Enterprise Institute

redicting the outcome of a Supreme Court case on the basis of oral arguments has never been more hazardous than in Bush v. Gore — or more tempting. Here goes, then: The justices' questions in today's proceeding suggest that the Court may follow its worst instincts and decide the case on equal-protection grounds, rather than the crisp and clear language of Article II of the Constitution or federal statutory law.

Article II Section 1 of the Constitution invests the states' legislatures, not their courts, with the plenary power to appoint presidential electors. Today's arguments produced an agreement of sorts concerning the application of that language to the Florida supreme court's escapades. Responding to Justice Anthony Kennedy's questioning, Gore attorney David Boies opined that the Florida legislature could not have legislated the post-election procedures and remedies that the Florida supreme court enacted in its decisions. That, Mr. Boies said, would constitute new law and thus contravene the applicable federal statute (Section 5 of Volume 3 of the United States Code), which provides that the electors' appointments must proceed under "laws enacted prior to" Election Day. The judicial enactment of the same procedures, in contrast, is mere routine "interpretation."

Justice Kennedy reacted with predictable incredulity. Whereupon Mr. Boies conceded that if SCOFLA's decision and opinion are a mere "sham" and totally unreasonable, they might constitute new law after all. Mr. Bush's position — forcefully argued by Theodore Olson — is that the Florida court's rulings are a sham and, moreover, acts of defiance both of the Florida legislature's plenary Article II authority and the United States Supreme Court's order to vacate SCOFLA's first ruling.

The Supreme Court, however, may decline to decide the squarely presented sham/Article II question. A decision and opinion along those lines would certainly come out 5:4. It would have to delve into matters of state law (how else tell a sham from routine interpretation?) and, moreover, characterize the Florida justices as tyrants. While five justices are probably prepared to do these things, respect for state law, coupled with a general affection for free-floating lawmaking in the guise of legal interpretation, may make the centrist justices — and Justice Kennedy in particular — look for alternative paths.

The most obvious alternative is equal-protection analysis — more precisely, the fact that the vote counts mandated by the Florida supreme court would follow no intelligible, fair procedure. Mr. Boies averred that varying standards to determine the voters "intent" would pose no equal-protection problem even if the applied standards differed from county to county, or table to table within each county. That position irritated not only the five conservative justices but also Justices Ginsburg, Breyer, and Souter. Mr. Boies did not help himself by suggesting, in response to Chief Justice Rehnquist's query about the time pressures, that maybe the recount need not be conducted in all counties — just the ones that could get around to it.

In contrast to the hard-and-fast Article II issue, then, a finding that the Florida supreme court's order violates equal protection (and perhaps due process) might attract a sixth or seventh vote. Liberal Justices might view an expansive equal protection argument as a means of salvaging something of value from the case. The federalism scruples that may make the centrist Justices squirm in addressing the Article II question do not apply to equal protection: Whacking the states with the all-purpose 14th Amendment club is what the Supreme Court does for a living.

The remedy that would flow from an equal-protection ruling is anybody's guess. (Who would formulate a recount standard that does pass muster — the Florida supreme court, or the secretary of state? The judge in Leon County?) Whatever standard anybody designs, is there any way of precluding yet another round of appeals? In light of the time pressures, the most likely practical consequence of an equal-protection ruling is that the election is over. Bush won.

Bush's equal-protection argument is powerful and, at some level, unanswerable. (Mr. Boies certainly did not answer it.) Still, a ruling on these grounds would be the worst possible way of reaching a desirable outcome. If there is any merit to the Florida supreme court's rulings, it has been to bring the country face to face with the dire consequences of judicial imperialism. It is bad enough, though perhaps unavoidable, that judicial imperialism should be dealt a setback by the imperial Supreme Court rather than the Florida legislature or the United States Congress. It would be worse if the means of curbing judicial overreach should be the Court's favored interventionist tool: Such a ruling would in some sense validate, rather than redress, judicial arrogance.

Mr. Olson valiantly, and rightly, resisted Justice Ginsburg's suggestion that an equal-protection ruling in Bush's favor would render the Article II issue academic. Even he, however, will take an equal-protection victory — and fight the battle over judicial imperialism another day. So should the rest of us.