Gary Rosen is right to take issue with those conservatives who reject the legal reasoning underlying the Supreme Court’s per-curiam decision in Bush v. Gore but who nonetheless enthusiastically embrace the result [“Reconsidering Bush v. Gore,” November 2001]. And he is right to stress that poorly reasoned or lawless decisions, particularly those coming from the nation’s highest court, promote disrespect for the rule of law. But he is wrong to accept, with hardly even a gesture toward argument or evidence, the conventional wisdom about the alleged infirmities of the Court’s legal reasoning.
The majority’s reasoning can be simply stated. According to well-settled law, the equal-protection clause of the Fourteenth Amendment prohibits states from debasing or diluting the weight of a citizen’s vote. The statewide manual recount of “undervoted” ballots (those with no machine-readable vote for President) ordered by the Florida Supreme Court violated this prohibition in a variety of ways: it permitted counties to use different and arbitrary standards to determine whether “undervoted” ballots contained legal votes; it arbitrarily excluded a class of spoiled ballots, “overvotes” (those ballots on which machines detected multiple votes for President); it allowed the inclusion of partial recounts of a county’s votes; and it permitted untrained and unsupervised personnel to conduct the recounts.
Was the Court’s reasoning airtight and unassailable? No. But when properly laid out it is hardly, as Mr. Rosen asserts, “unpersuasive on its own terms.” It is plausible and respectable and may be correct.
Nor is Mr. Rosen on solid ground when, invoking Alan Dershowitz’s reckless book-length polemic, he accuses the conservative Justices of producing an equal-protection holding that was “irreconcilable with the basic tenets of their judicial philosophy.” Tensions there undoubtedly are, but where is the irreconcilability? Conservatives believe that state action must comply with federal law and the Constitution. The conservative members of the Rehnquist Court have in the past held state action invalid on equal-protection grounds. In Bush v. Gore they stressed, in typically conservative fashion, respect for forms and adherence to the rules.
Mr. Rosen worries that “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.” But this often repeated worry (or hope, depending on your point of view) is unfounded. As Justice David Souter explained in his dissent (in the course of laying out his reasons for agreeing with the majority that the Florida recount was unconstitutional), some differences in vote-counting technology across counties can be justified on the basis of cost and the value of local experimentation. But “a different order of disparity” obtained in the treatment of votes in the Florida recount, because there was no legitimate reason to treat similarly marked ballots differently from county to county, from precinct to precinct, and in some instances from counting table to counting table.
Finally, Mr. Rosen contends that the “strongest argument” for the Court to have stayed out of the Florida election controversy was 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.” Some such prudential or political argument may have furnished the strongest reason for the Court to avoid involvement, but even the strongest version proves inconclusive.
It is true that the Twelfth Amendment tells Congress how to count electoral votes, and that the Electoral Count Act specifies procedures for how Congress should resolve disputes about which electoral votes to count. These pertinent constitutional considerations indicate that Congress has authority, perhaps final authority, for resolving such disputes. But nothing in the Constitution or federal law implies that Congress has exclusive authority for resolving all controversies that may arise in the course of a presidential election. Indeed, given that the Florida election controversy had entered legal channels early on, and that the key decisions by the Florida court involved novel and difficult questions of constitutional law, the Supreme Court could reasonably be seen as the branch of government particularly well-suited to resolve the controversy.
School of Law
George Mason University
It is Gary Rosen, not the five Justices he attacks, who has departed from conservative principles. The Supreme Court’s decision in Bush v. Gore was a straightforward application of well-established legal doctrine, as the dissents implicitly acknowledged by their failure to show how the decision was inconsistent with the cases on which the majority relied. Mr. Rosen never even mentions these cases, and there is nothing “conservative” about pretending that relevant precedents do not exist.
The Justices held that several features of the recount ordered by the Florida court violated the principles established in a series of geographic vote-dilution decisions beginning with Reynolds v. Sims in 1964. In the wake of the 2000 election, the Florida court devised a complex system of vote-weighting in which certain kinds of ballots were more likely to be counted as legal votes in some places than in others, thus discriminating for and against different groups of voters based on where they happened to reside. The complexity of the geographic vote dilution ordered by the Florida court did not change its nature. This was a new example of vote dilution, but it was novel only because no legislature had ever prescribed anything so bizarre. As Reynolds and subsequent cases had established, the inevitability of some differences in the way ballots are treated does not mean that systematic and avoidable biases are permissible.
Ignoring the decisions on which the majority relied, Mr. Rosen recycles Alan Dershowitz’s dishonest claim that the Court’s conservatives performed an “ideological somersault.” As evidence, he offers out-of-context quotations from cases in which Justices William Rehnquist and Clarence Thomas resisted unprecedented innovations in the branch of equal-protection law dealing with “suspect classifications,” which has nothing to do with Bush v. Gore‘s application of settled doctrine from the branch of the case law having to do with “fundamental rights.”
Mr. Rosen supplements this sophistry with the canard that the Court was acting in bad faith because it declined to rule more broadly than the case required. Using another out-of-context quotation, this time from Justice Antonin Scalia, Mr. Rosen conflates the genuinely improper practice of announcing judicial dispositions that are not derived from articulated principles with the entirely proper recognition that the application of sweeping constitutional terms like “equal protection” necessarily requires differentiation among factually dissimilar cases.
Mr. Rosen also appears to accuse the Court of improperly deciding a nonjusticiable “political question.” Even the Bush v. Gore dissenters did not go this far, presumably because they were aware of McPherson v. Blacker (1892) and Baker v. Carr (1962). If Mr. Rosen was aware of these decisions, he ignored them.
A principled conservative might argue that some or all of the precedents on which the majority relied were so clearly wrong that they should be overruled. But that would require a serious argument, not an appeal to anodyne slogans about “judicial restraint” and “passive virtues.” And even if one buys Mr. Rosen’s suggestion that it would have been shrewder for the Justices to duck the case entirely (as they could have done), such political punditry is not a substitute for legal analysis. Those on the Left, not conservatives, are advantaged when law is reduced to politics.
Finally, Mr. Rosen repeats the myth that the Supreme Court refused to let “the state’s high court try to remedy the (supposed) violation of equal protection in its recount standards.” Yet, only one day before the Supreme Court’s December 12 decision, the Florida court itself said that December 12 was the deadline under state law for completing the recounts. The Justices properly deferred to that court’s interpretation of state law, and they also properly gave that court an opportunity (though not an invitation) to revise its interpretation of state law on remand. Al Gore’s lawyers did not ask the Florida court to take this step, but they have acknowledged that the Supreme Court’s opinion left this avenue open to them.
Bush v. Gore has indeed exposed a disturbing lack of adherence by certain conservatives to conservative principles, but the guilty parties do not sit on the U.S. Supreme Court.
School of Law
George Mason University
One could reasonably argue that the Supreme Court should have held that only the Florida legislature and the U.S. Congress could decide whether Florida’s high court had deviated from the state’s election law. Indeed, I so argued as counsel to the Florida House of Representatives during last year’s election dispute. But Gary Rosen is mistaken to suggest that the Supreme Court should have refused to hear Bush’s equal-protection claim against the Florida recount because it raised a “political question” and was weak on the merits.
The Supreme Court routinely judges whether election laws violate the Constitution’s equal-protection clause. In doing so, it has rejected the argument that such involvement raises nonjusticiable “political questions,” even when the issue is the drawing of legislative districts. Nor has the Court shrunk from presidential election disputes, having ruled on John Anderson’s behalf in Anderson v. Celebrezze (1983). Indeed, discrimination in election law merits judicial intervention more than other forms of discrimination because it can suppress the political remedy for bad government. If election officials counted dimpled ballots only when cast by Democrats, would anyone bar the courthouse doors to the Republicans?
Nor was Bush’s equal-protection argument weak. Mr, Rosen concludes otherwise by basing himself on the mistaken premise that, taken to its logical conclusion, the Court’s equal-protection theory would require all counties to use the same counting machines and standards. But the opinion is clear that the Justices’ objection was not to mere variation but to differences in ballot treatment that resulted from the exercise of standardless discretion by officials acting after the election.
The Court has traditionally looked with suspicion on standardless discretion. Thus, different counties are allowed to have different rules about when to issue parade permits (Forsyth County v. The Nationalist Movement, 1992) or where newsracks may be located (City of Lakewood v. Plain Dealer Publishing Co., 1988), but the rules must be clear. Why? Because standardless discretion allows officials to engage in undetectable discrimination against disfavored viewpoints. No one cares if one county chooses to have fewer parades or newsracks than another. What we care about is whether counties can suppress the parades or newspapers they do not like.
Likewise, it is unproblematic if, before an election, counties elect to have different counting machines or different standards for counting chads. No county has an incentive to choose machinery or standards that undercount its own votes and thus diminish its clout within the state. And if the county acts before an election, it cannot know which political party will benefit from its choice. The exercise of standardless discretion after an election allows partisan officials to discriminate to their party’s advantage.
In Bush v. Gore, the Court pointed to considerable evidence of standardless discretion. The standards varied not just among counties but between different recount teams, and even between different members of the same county board. Counties changed their standard multiple times after they knew the results produced by earlier standards. Counters were assembled ad hoc, without training or screening for political bias. Furthermore, the manual recount selectively targeted those ballots thought to help Gore the most (the “undervotes”), and mandated including results from heavily Democratic precincts of Miami-Dade County whether or not results were obtained in Republican precincts.
The Court’s concerns were confirmed by the recent media recount of the Florida vote. Though it was a professional recount, conducted at an unhurried pace by counters screened for political bias and applying the same standards, Democratic counters were 25 percent more likely than Republican counters to deny that a mark reflected a vote for Bush, and Republicans were 4 percent more likely to deny that a mark meant a vote for Gore. One can imagine how discriminatory the results would have been had Florida proceeded with its rushed, partisan recount using varying standards.
Some have argued that the Court deviated from precedents holding that the equal-protection clause only bars explicit or intentional discrimination. But in Anderson, the Court struck down a filing deadline that was neutral on its face without any proof of discriminatory intent. Its test was whether the election law had an unreasonable or discriminatory effect on one candidate. Likewise, the decisions in Forsyth and Lakewood struck down laws that were never proved to be explicitly or intentionally discriminatory; it was enough that the laws, by giving standardless discretion to officials, had created the potential for undetectable viewpoint discrimination.
Even if we accept the dubious claim that the Justices should follow their own personal precedents rather than those of the Court, Mr. Rosen is unfair to condemn the majority in Bush v. Gore for deviating from their prior views. All five conservative Justices had previously adopted the Anderson test, and had agreed that standardless discretion was unconstitutional in the parade-permit case.
Harvard Law School
Richard A. Epstein:
Gary Rosen’s perceptive retrospective well captures the strange role reversals that Bush v. Gore spawned. There can be little doubt that conservative thinkers praised the doctrine of judicial restraint insofar as it applied to the wanderings of the Florida Supreme Court, only to throw it to the winds when the question was whether the U.S. Supreme Court should intervene on what many regarded as a matter of state law—to wit, the interpretation of Florida election law.
Where Mr. Rosen goes wrong, I believe, is in suggesting that none of the theories adopted by the Court justified its intervention. The majority’s greatest strategic blunder in Bush v. Gore was to bet its grubstake on an equal-protection argument that simply cannot bear the weight placed on it. For the longest time, conservative judges have urged a narrow interpretation of this clause, an interpretation that makes inadvertent vote dilution a most improbable place for discovering a violation of equal protection. In previous cases, the Court had found such violations only where a “suspect classification,” like race, had been used and where the norm of equal treatment had been intentionally defied.
The far better argument in Bush v. Gore was based on Article II of the Constitution, whereby a state must “appoint” its electors “in such Manner as the Legislature . . . may Direct.” This argument, embraced only by Justices Rehnquist, Scalia, and Thomas, has multiple advantages over the novel equal-protection claim that in fact decided the case. It makes it unnecessary to distinguish away a flock of equal-protection precedents that cut against the majority’s decision; because it applies only to federal elections, it does not encourage the endless follow-on litigation of state elections that may result from the Court’s new equal-protection doctrine; and it directs fire more effectively at the Florida Supreme Court for the way it mangled Florida election law.
The bill of particulars against the Florida court is damning. It usurped the power of the secretary of state, in whom the legislature, with an eye to uniformity, had vested the authority to administer and interpret the state’s election laws. The decisions of such officials are subject to judicial review only when they have clearly abused their discretion, which was not the case here.
Indeed, it is the Florida justices who abused their authority. They extended deadlines for precinct recounts without cause; they issued an indefensibly broad reading of what the law meant by an “error in the vote tabulation,” thus redefining a legal vote so as to substitute unreliable hand-counts for more accurate machine counts; and they bypassed the normal processes for the administrative “protest” of an election by authorizing a state judge to conduct recounts in places where neither side had requested them. Bush won the election according to the rules set out by the Florida legislature. Gore had a chance to win only under the rules created out of whole cloth by the Florida Supreme Court.
Stressing this line of argument makes it possible, moreover, to avoid the “pragmatic” arguments championed by Richard A. Posner, who feared “paralyzing chaos” if the litigation in Bush v. Gore had worked its way first through the Florida legislature and then the Congress. An obvious rejoinder to Posner and those who agree with him is that the American public was bored but not restless with the endless legal wrangling: no coup was in the air. More to the point, these pragmatic arguments have proved nothing but an embarrassment to any principled effort to defend the outcome of Bush v. Gore on Article II grounds. Appealing to realpolitik sounds like a tacit confession that all the conventional legal arguments favored Gore, when in fact they did not.
University of Chicago Law School
Robert H. Bork:
Gary Rosen’s argument that the Supreme Court should have refrained from deciding Bush v. Gore rests upon several grounds, none of them, in my opinion, convincing. “If judicial restraint means anything,” Mr. Rosen says, “it is that the Justices should respect the prerogatives of the other branches of government, especially with regard” to questions “that do not clearly fall within the Court’s institutional competence and would needlessly involve it in partisan controversy.” The legal question addressed by the Court’s three-Justice conservative minority—whether the actions of the Florida Supreme Court violated Article II of the Constitution and Section 5 of Title 3 of the United States Code—is plainly within the Court’s institutional competence, and the prospect of partisan controversy is hardly reason to ignore the law.
Four other Justices, including two of the Court’s liberals, agreed that a constitutional violation was taking place. It is unfortunate that they chose the equal-protection clause as the grounds for that conclusion, but that does not affect the correctness of the rationale adopted by Chief Justice Rehnquist and Justices Scalia and Thomas. The charge of abandoning judicial restraint is more appropriately directed to those who preferred the equal-protection rationale to the Article II reasoning.
It may be objected that the three concurring Justices also signed on to the equal-protection argument and, to that extent, endorsed a faulty position. They probably could not have held some of the other Justices to their positions without doing that. If so, it was the kind of tactical compromise that occurs from time to time on all multi-member courts, and does not provide reason to say that the conservative Justices sacrificed their principles to partisanship. They demonstrated in their concurring opinion that the outcome was correct on solid constitutional grounds.
Particularly unpersuasive are Mr. Rosen’s concluding arguments that conservatives will have difficulty continuing to endorse judicial restraint and that the Left may renew its “commitment to using the courts as an engine of social change.” It is difficult to see what is unrestrained about the concurring opinion signed by the three conservative Justices. As for the Left, its commitment to the misuse of courts to frustrate democracy has never wavered and hardly needs renewing.
American Enterprise Institute
Thomas M. Comerford:
Gary Rosen glosses over the overriding fact that if the conservative Justices had remained inactive on this matter, we would have been left with the rulings of the rogue Florida Supreme Court, which was aiding and abetting the invention of enough votes to give the election to Gore. As someone who decries judicial activism, I wish that it would have been possible for the Justices to stand down, but it cannot be emphasized enough that, had they done so, the rawest, most unprincipled form of judicial activism would have triumphed. To paraphrase Justice Jackson, a principled stand against judicial activism is not a suicide pact.
Nor would resorting to the provisions of the Electoral Count Act have produced a nonpolitical result. With a Republican House of Representatives and a Senate either controlled by the Democrats or evenly divided between the parties, Congress would not have been able to exercise its powers under the act. The act provides that a state’s certified vote should decide a deadlock. But if Gore’s electoral slate had “won” under the recount rules of the Florida Supreme Court and if Governor Jeb Bush, believing the election stolen, had certified the Florida legislature’s slate for his brother, the Florida justices might have directed some state official to certify their slate, resulting in a certification impasse.
In the end, we would have had a compromise like the one in 1876, which produced a tarnished President. Or else the dispute would have wound up in the U.S. Supreme Court anyway.
Gary Rosen argues that the conservative majority on the Supreme Court should have remained true to its principles and chosen not to intervene in the Florida election dispute. He assumes that had the recounts ordered by Florida’s high court gone forward, Bush would still have won, as demonstrated by most of the recounts conducted after the election at the behest of news organizations. Mr. Rosen’s assumption is wrong, however, and springs from a misunderstanding of the political context in Florida.
When the Florida justices rewrote the state’s election laws after the votes had been cast, they set up a recount process designed to assure Gore the necessary votes to overtake Bush’s lead. The news organizations hired neutral counters, but many of the Democratic officials in charge of the actual recount were anything but neutral. The process was designed to deliver a victory for Gore.
If this were as obvious to Gary Rosen as it was to the conservative members of the U.S. Supreme Court, he might have come to a different conclusion.
Cardozo School of Law
New York City
Robert D. Weinberg:
Though the conservative majority in Bush v. Gore may have sidestepped certain of its longstanding principles—judicial restraint, federalism, strict construction—imagine how these principles would have fared after a Gore victory and subsequent judicial appointments. Sometimes one must disregard principles in the short term in order to save them in the long term.
Moreover, if Gary Rosen believes for a moment that the conservative Justices’ strict adherence to their principles would have inspired liberals to change their tune on judicial activism, he is sadly mistaken. Bush v. Gore was an important reminder to them that two can play at this game.
Jackson Heights, New York
John J. DiIulio, Jr.:
Bravo to Gary Rosen for arguing that the logic by which the Supreme Court concluded the 2000 presidential contest was anything but consistent with conservative precepts or jurisprudence. I made a kindred argument in the Weekly Standard right after the decision was announced. Nobody doubts (and subsequent reports have done much to confirm) that the Court’s conservative Justices, feeling tremendous pressure to “end it,” did what they thought was right at the time. But when conservative judges forsake fundamental doctrines out of a sudden solicitude for uniform electoral procedures—in a country where such procedures have long varied not only from state to state but from county to county and even within counties—they have reasoned poorly and decided wrongly.
Yes, it would have been sheer hell to let the Florida legislature and then the Congress decide the controversy, but the only constitutionally correct course for the Court was to direct the matter back to elected representatives. Yes, it would have taken what was already a three-ring media circus and turned it into worse, but it might also have proved to be a teachable civic moment concerning what Alexander Hamilton, in Federalist 1, termed “government by reflection and choice.”
I have yet to hear any conservative apologist for the Court explain how, had the presidential shoe been placed on Gore’s foot by precisely the same Fourteenth Amendment “jurisprudence,” conservatives would not still be howling about the imperial, activist, antidemocratic, ideologically driven Court and its minions. No, Mr. Rosen is right, and it is a shame that so few conservatives have demonstrated their anything-but-foolish consistency by saying so.
In Bush v. Gore, the Court trivialized the Constitution, aped liberal equal-protection polemics, and made a futile attempt to depoliticize questions that are inescapably political. It did not follow the election returns, but decided them in a way that will, in due course, give the full-time judicial imperialists of the Left what they need to consolidate further their perverse control over our system of self-governance.
University of Pennsylvania
Seth A. Halpern:
Congratulations to Gary Rosen for repudiating the so-called conservatives who would have the Supreme Court save America in spite of itself. It is hard to resist the notion that many of those applauding the ill-conceived decision in Bush v. Gore were simply venting decades’ worth of frustration and rage now that the Left was hoist by its own petard. One hopes the gleeful cackles will be replaced with more sober assessments, like Mr. Rosen’s, of the damage done to their own cause.
Scarsdale, New York
In a decade or so, I have no doubt that Gary Rosen’s brave essay on Bush v. Gore will rank with John Hart Ely’s classic essay on Roe v. Wade as a model of how principled commentators can separate their political allegiances from their constitutional conclusions. Ely was a liberal who supported abortion but had the courage to acknowledge that the constitutional reasoning of Roe was shabby and unconvincing. Mr. Rosen is a conservative who supports Bush but has the courage to acknowledge that the constitutional reasoning of Bush v. Gore is similarly shabby and unconvincing.
Mr. Rosen candidly acknowledges the flaws not only of the equal-protection argument embraced by the five Justices in the majority but also of the various alternative arguments that have been retrospectively devised to justify Bush v. Gore. These include the novel and unprecedented Article II argument and the purportedly pragmatic argument—only the Court could save the country from chaos—that has been revealed as hyperbolic and inaccurate by the results of the media recounts, which indicate that Bush would have won without the Court’s eager assistance. The Florida Supreme Court went too far, Mr. Rosen recognizes, but Congress was the body authorized to correct its errors.
By closing ranks around a transparently unconvincing and activist decision, conservatives are making the same mistake that many liberals made when they rallied around Roe, or spent the ensuing decades trying to come up with a better argument for a result that the Court itself was unable to justify. By closing ranks around Bush v. Gore, rather than acknowledging it as a constitutional embarrassment, conservatives are making a historic error that will return to haunt them. As one of the only conservatives who has had the integrity to dissent, Gary Rosen may have angered his friends, but he will be vindicated by the respect of history.
Legal Affairs Editor
The New Republic
It is axiomatic in politics that the center rarely holds. Undoubtedly, Gary Rosen’s “reconsideration” of Bush v. Gore will be seen in conservative circles as the secular equivalent of blasphemy. Not being a disciple of that particular church, I found the article a welcome break from the seeming inability of partisans on either side to see in the Supreme Court’s decision anything but what their political predilections would have predicted.
Mr. Rosen expresses discomfort with judicial intervention in the political process and asks for a high burden of justification before courts enter into active electoral controversies. He recognizes, too, that there are inevitable costs associated with judicial involvement in politics, even where the federal interest is well established (and here I leave aside the obviously contentious question of whether Florida 2000 actually presented such an interest). Finally, he asks the question that appeared never to trouble the five Justices who ruled for Bush: whether other institutional actors, such as the state legislature or Congress, could have repaired the harm had the Court stayed its impulse to intervene.
Unfortunately for Mr. Rosen, his position found its closest ally on the Court not among the conservatives but in the opinion of Justice Stephen Breyer. It was Breyer who asked the inevitable question of why the Court should have thrust itself into the midst of partisan rancor when both the Twelfth Amendment and the Electoral Count Act so palpably demonstrate an institutional commitment to letting the political branches resolve this consummately political matter—at least in the first instance. What happened in Florida was about politics, and it is stunning to see the uniformity of conservative support for the idea that the Court was right to supplant the political process.
But what of the Article II rationale for the Court’s intervention, embraced by three of the conservative Justices and given a sympathetic hearing by Mr. Rosen? I am confident that time will show this to have been a make-weight argument, hastily crafted for the issue at hand. Can Article II really mean that state courts are precluded from reviewing the presidential voting schemes enacted by legislatures? Surely not. Had the Florida legislature decreed that no women could vote for electors—to pick an extreme example—the Florida courts would have been duty-bound to strike down the law under the Nineteenth Amendment, which guarantees women the franchise. Indeed, the supremacy clause of the Constitution would have required them to do so.
The Article II proponents on the Court found a defect in Florida only because the state judiciary had interfered with the selection of presidential electors. But what if the office in question had been not the presidency but one of Florida’s seats in the closely divided U.S. Senate? Article II would have nothing to say about this; there would be no federal interest—a position that seems ridiculously formalistic, considering that the supposed overreaching by the state courts would have been exactly the same.
Removed from the rancor of the 2000 election, Gary Rosen’s article is a welcome step toward a critical assessment of the relation between law and politics. Bush v. Gore is such an extreme and troubling judicial intervention into the domain of politics that the prevailing intellectual coalition was unlikely to remain intact.
Columbia Law School
New York City
It can occasion little surprise that I admire Gary Rosen’s “Reconsidering Bush v. Gore,” since I am on record describing the case as an abomination. My admiration comes from the fact that Mr. Rosen is one of the remarkably few conservatives who have been willing to “go public,” as it were, with their doubts about the fundamental legitimacy of the decision. Even conservatives who are skeptical of the arguments in the majority opinion, like Richard A. Posner, seem eager to offer a “pragmatic” defense of the decision.
If Mr. Rosen is willing to admit that some of the liberal critics of the decision may be worth attending to, then an obvious question is whether those liberal critics may themselves be willing to concede in return the merits of at least some of the conservative critique of the Warren Court and its aftermath. One topic that certainly bears reexamination, especially in light of Bush v. Gore, is the wisdom—and constitutional provenance—of the Supreme Court’s earlier interventions in the political process in the so-called “one-person, one-vote” cases.
A consensus appears to be developing in the legal academy, among both liberals and conservatives, that the Court’s almost literally thoughtless emphasis on mathematical equality in the population of voting districts has not served the country well and has repeatedly drawn the judiciary into what Justice Frankfurter famously called a “political thicket.” Few analysts reject Baker v. Carr itself, which made legislative districting “justiciable” in the first place. Rather, the critics focus on how rapidly the courts have moved from declaring that they had something to say about districting to the conclusion that they were entitled to have the dogmatic last word on the subject, whatever the cost to legitimate political interests.
The presidency of Bill Clinton forced some conservatives to reconsider their endorsement of almost unfettered executive authority. Similarly, Bush v. Gore must force liberals to recognize that there may have been more merit than they had previously acknowledged to Justice Frankfurter’s warning about involving the courts in disputes best left to the political process.
School of Law
University of Texas
Cass R. Sunstein:
Gary Rosen’s essay on Bush v. Gore is especially interesting not only because of its content, but because Mr. Rosen is one of the relatively few conservatives who have publicly criticized the Supreme Court’s decision. Why is this? Indeed there is an equivalent puzzle. Relatively few liberals have publicly applauded the decision. Why is that? Why have more liberals not written in defense of the Court’s aggressive use of the equal-protection clause?
For those who believe in the rule of law, it is more than disturbing to find that by far the best predictor of one’s attitude toward Bush v. Gore is whether one voted for Bush or for Gore. Perhaps this is not so disturbing for ordinary citizens, who are not specialists in constitutional law. But it is extremely disturbing to find that on the highly technical, even esoteric issues involved in the case, the attitudes of so many specialists—including journalists who follow the Court, political scientists, historians, law professors, and even judges—seem determined, almost all of the time, by their political preferences. Mr. Rosen’s critical remarks on the Court’s decision are refreshing, but I wish that he had done more to address this puzzle.
University of Chicago Law School
When speaking about the Constitution and the role of the Supreme Court, conservatives tend to sound like monks—full of professions of modesty, self-denial, and indifference to worldly ends. The job of the Justices, spokesmen for the Right typically declare, is not to “legislate from the bench,” deciding which policies are good or bad, what direction American society should take. Rather, it is to see what, if anything, the Constitution has to say about a given issue. If the Constitution is silent—and, as a matter of language and history, it is silent about a great many things—the Justices should be silent as well. They should exercise (in the familiar catchphrase) “judicial restraint,” deferring whenever possible to the choices of the American people and their elected representatives.
The problem with this seemingly austere view of the judiciary is that it seldom demands any meaningful sacrifice from those who espouse it. Conservatives thunder against Justices who indulge their own ideological preferences, but this indignation comes cheap, since those preferences, for the past half-century, have been overwhelmingly liberal. Thanks to the judicial depredations of the Left, conservatives have been able to have their cake and eat it too, standing above the fray as stern defenders of the Constitution while at the same time smiting their political foes and sparing their own agenda.
The Florida election controversy was thus a rare opportunity for conservatives, on and off the bench, to show that their constitutional principles transcend their own political interests. To put a finer point on it, Bush v. Gore was a test of conservative integrity—one that, to my disappointment, the five conservative Justices failed. My mind has not been changed by the various rationalizations for the Court’s decision now offered by letter-writers who should know better.
Peter Berkowitz and Nelson Lund would have us believe that the conservative Justices were simply following precedent, engaging in what Mr. Lund calls a “straightforward application of well-established legal doctrine.” The cases to which he refers, Baker v. Carr (1962) and Reynolds v. Sims (1964), did indeed concern “vote dilution,” but the term is highly misleading when applied to the Florida controversy. Baker, Reynolds, and their judicial progeny involved gross disparities in the population of voting districts and the “dilution” that took place when, say, a rural district of 5,000 and an urban district of 50,000 both had a single representative in the state legislature. In these cases, according to the Court, discrete and identifiable constituencies—city residents, for the most part—had been systematically denied the “equal protection” promised by the Fourteenth Amendment.
What took place in Florida was not a “new example” of these apportionment practices, as Mr. Lund lamely suggests. It was a dispute over how votes should be counted in the first place—an area into which the Court had not previously delved. At the same time, and of crucial importance in cases of this sort, the arbitrariness in the Florida recount—and arbitrariness there was aplenty—did not affect one part of the population more than another. Under the rules finally promulgated by the Florida justices, no identifiable group was put at a special disadvantage; potentially biased election officials of both parties would have scrutinized the “under-voted” ballots of voters in every corner of the state.
As for the practical consequences of Bush v. Gore, Peter Berkowitz assures us that the decision poses no threat to continued local discretion over election procedures. Disparities in recount standards, he asserts, are a completely separate issue from disparities in basic voting technology. But this makes no sense. If we learned anything from the Florida election fiasco, it is that it matters a great deal whether the voting machine that greets you when you pull back the curtain is an Accuvote optical scanner or an old-fashioned punchcard system. With the newer technology, the risk that a voter will spoil his ballot is significantly and consistently lower. Why, by the Court’s own (unpersuasive) logic, should a county or state be allowed to choose the less reliable system, thereby effectively disenfranchising large numbers of voters?
The conservative Justices themselves clearly appreciated the far-reaching implications of their ruling in Bush v. Gore. That is why they insisted that their decision applied only to the “present circumstances”—an extraordinary and self-serving disclaimer that Mr. Lund unashamedly defends as nothing more than “declin[ing] to rule more broadly than the case required.” But the Court’s expansive new interpretation of the equal-protection clause will not be confined so easily. It has already prompted legal action against election systems in Florida and Illinois, and more suits are sure to follow.
Worse—and here we arrive at the question of ideological consistency—even if the ruling in Bush v. Gore could be connected in some plausible way to cases like Baker and Reynolds, the conservative Justices now sitting on the Court are perhaps the last jurists in the country one would expect to make such a connection. The vote-dilution decisions of the 1960’s are landmarks of the Warren Court—liberal activism at its height. They sparked years of intense litigation, and resulted in the overturning of long-established apportionment schemes in nearly every state, all in the name of ensuring strict mathematical equality among election districts.
Judicial conservatives have condemned these decisions from the start. “The history of the adoption of the Fourteenth Amendment,” wrote Justice Harlan in a stinging dissent in Reynolds, “provides conclusive evidence that neither those who proposed nor those who ratified the amendment believed that the equal-protection clause limited the power of the states to apportion their legislatures as they saw fit.” More recently, in a collection of lectures titled A Matter of Interpretation, Justice Scalia ranked Reynolds among the most objectionable decisions rendered by those who believe in a “living” Constitution. In his 1997 Wriston Lecture at the Manhattan Institute, Scalia went still further, lamenting the change in constitutional attitudes that has taken place over the past century. His benchmark was the Nineteenth Amendment, adopted in 1920 to give women the right to vote:
Can you imagine an American society that would adopt a constitutional amendment for that? We had an equal-protection clause in 1920. And in the abstract what could possibly be a greater denial of equal protection . . . than denial of the franchise? And yet the Americans of 1920 did not think that the solution for this was to come to the Supreme Court and say, “We have been denied equal protection.” . . . You know for sure that that is the way it would play today.
Justice Scalia is hardly alone among the current members of the Supreme Court in rejecting virtually any effort to broaden the meaning of equal protection, whether in the realm of “suspect classifications” or in that of “fundamental rights,” to use the technical categories with which Mr. Lund tries to cloud the issue. Justices Rehnquist and Thomas—and to a significant extent, Sandra Day O’Connor and Anthony Kennedy as well—have also stressed the original meaning of the clause, which is what made it so easy for Alan Dershowitz to gather the damning evidence against them that I used in my article. It gave me no pleasure to side with the often deplorable Dershowitz, but he did not distort or misrepresent the views of these Justices, as Messrs. Berkowitz and Lund charge with misplaced vehemence.
Throughout their careers, the Court’s conservative Justices have rightly seen the equal-protection clause as a prime source of liberal mischief, and have sought to narrow its reach, not hesitating to reject activist precedents with which they disagree. The notion that, in Bush v. Gore, they were compelled to apply—and extend!—equal-protection case law inherited from the Warren Court is nothing short of ludicrous.
Einer Elhauge seeks to defend the majority’s ruling in Bush v. Gore by an entirely different route. In his eyes, the relevant precedents have to do with “standardless discretion.” Just as the Court has frowned on giving local officials too much leeway in handing out parade permits or newspaper concessions, so too, he suggests, was it right for the Justices to quash “Florida’s rushed, partisan recount,” with its “varying standards.”
The curious thing about Forsyth and Lakewood—the two cases Mr. Elhauge cites—is that they appear nowhere in the majority’s decision. Why did the Justices refrain from citing such supposedly decisive precedents? Because they have nothing to do with the equal-protection clause of the Fourteenth Amendment, the constitutional provision on which the Justices explicitly based their ruling.
Forsyth and Lakewood were First Amendment cases, involving the basic freedoms of speech, assembly, and the press. As such, they drew on a body of jurisprudence much more stringent in its demands than equal-protection law. That law, as I suggested above, has a relatively short—and controversial—history with respect to voting rights. Never before had it been thought to prohibit the sort of partisan manipulation of voting procedures that undoubtedly took place in Florida (and that has long been a part of American politics). Mr. Elhauge tendentiously mixes constitutional apples and oranges—something that the Court itself declined to do.
To their credit, Richard A. Epstein and Robert H. Bork are unequivocal in rejecting the equal-protection argument of the Court’s majority opinion. They believe that far better grounds for ending the Florida recount lay in the concurrence, based on Article II, that was written by Chief Justice Rehnquist and joined by Justices Scalia and Thomas. On this view of the case, the decisive factor was the outrageous overreaching of the Florida Supreme Court, whose various rulings, as Mr. Epstein puts it, “mangled” the election laws that had been set in place by the state legislature.
The Article II argument is indeed more respectable, especially for conservatives, and I acknowledged as much in my piece. But that hardly makes it unproblematic. In the first place, and most obviously, it commanded just three votes on the Court—it was not the Justices’ ruling. As a matter of law, Bush v. Gore stands or falls on the strength of the majority’s equal-protection analysis.
Judge Bork asks us to look beyond that analysis and appreciate that Rehnquist, Scalia, and Thomas joined the majority opinion as a “tactical compromise,” concerned more about what they saw as the correct result—stopping the Florida recount—than about the means by which it was achieved. But their endorsement of the Court’s equal-protection ruling was not just a “tactical” shift. It was an egregious reversal of longstanding principle, and, as such, could only appear as a judicial power play—the sort of thing for which the conservative Justices (and, for that matter, Judge Bork) have often criticized liberal activists.
Mr. Epstein, for his part, only implicitly suggests that the Article II argument is enough to vindicate Bush v. Gore as a whole. To the extent that he does, however, he is not so far from the unprincipled “pragmatism” and “realpolitik” that he rightly criticizes in Richard A. Posner’s defense of the Court’s ruling.
As the letters of Thomas M. Comerford, Lester Brickman, and Robert D. Weinberg suggest, many conservatives have in fact concluded that the only proper way to evaluate Bush v. Gore is in terms of its result—bad law, yes, but in the service of a good cause. This rationale should sound familiar; it is how liberals over the past several generations have often justified their own judicial excesses. If both sides are going to “play at this game,” as Mr. Weinberg recommends, conservatives should do away with the pretense that on constitutional matters they speak as disinterested umpires.
The more fundamental problem with the Article II argument is its novelty—its plausible but unprecedented claim that, although entitled to interpret state election law, the Florida court had gone so far beyond its authority as to run afoul of the Constitution. The novelty of a constitutional argument does not make it incorrect, of course. But in this case it should have given the Justices pause, especially since the issues involved were of precisely the sort that, under the Constitution and federal law, fell to other, more democratically accountable bodies.
The question here is not whether the Florida justices had made a hash of things—they had, and their shameless activism demanded a remedy. Rather, it is a question of institutional authority and competence, of whose role it was to right this wrong. For conservatives, it has long been axiomatic that, where other branches of government—especially those more responsive to the people—are able to resolve a divisive political issue, the Supreme Court should allow them to do so.
In his eloquent letter, John J. DiIulio, Jr.—an early, lonely conservative dissenter on Bush v. Gore—summarizes this view, which I feel sure would have been the conventional wisdom on the Right if it had been the Democratic nominee seeking the intervention of the Supreme Court. As Samuel Issacharoff observes, it has been “stunning to see the uniformity of conservative support for the idea that the Court was right to supplant the political process.” On this point, several of my critics have misunderstood me. I never said that issues of the sort raised in Bush v. Gore were “nonjusticiable”—the Warren Court crossed that bridge some time ago, as San-ford Levinson reminds us—only that the conservative Justices should not have agreed to adjudicate them.
I join with Seth A. Halpern in hoping that conservatives will come around to “more sober assessments” of the decision, and I appreciate Jeffrey Rosen’s flattering suggestion that my own essay will help bring about such a reevaluation.
What Bush v. Gore will mean for the wider debate about constitutional interpretation is difficult to say, though I stand by the depressing speculations I made in my article. Mr. Levinson may be correct that some liberals have begun to reconsider their activist ways, but these second thoughts tend to be the stuff of academic seminars and conferences, not of action in the courts. If, as I suspect, Bush v. Gore makes it harder for conservatives to go on invoking ideas like judicial restraint and strict constitutional construction, then an important cultural barrier to liberal activism will have been removed.
I share Cass R. Sunstein’s disappointment that evaluations of Bush v. Gore seem so completely determined by partisan loyalties. This seems to me all the more reason to uphold an approach to the Constitution and the Supreme Court that not only counsels judicial modesty but insists on its impartial exercise.