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Author Biography: Bruce Ackerman is Sterling Professor of Law and Political Science at Yale University. Ian Ayres is William K. Townsend Professor of Law at Yale University.
"You hick! ... I take a nobody, see? ... Get his name in the papers and pay for his campaign expenses.... Get my boys to bring the voters out. And then count the votes over and over again till they added up right and he was elected."-Edward G. Robinson (as gangster Johnny Rocco) explaining Florida politics to John Rodney (as Deputy Clyde Sawyer) in Key Largo (1948).
At the close of the polls on November 7, 2000, the presidential election was for all intents and purposes a tie. Everything depended on the outcome in Florida, where the first tabulation showed Governor Bush ahead by a few hundred of the six million votes cast there. The next day, as required by Florida law, the ballots were counted again and Bush was again the winner. Protests were lodged and a third count began. The Florida Supreme Court extended the lawful deadline in a decision that was later unanimously vacated by the Supreme Court of the United States (in Bush 1). By the time that vacated deadline had arrived, Bush was still ahead and the secretary of state certified him the winner. Gore went back to court. A lower court threw out his suit, but the Florida Supreme Court ordered yet another recount. The Supreme Court of the United States in Bush II first stayed the Florida decision and then reversed it, effectively ending the count. Gore conceded. And the left had a cow.
A leading constitutional scholar has called the decision "vulgarly partisan." Six hundred seventy-three law professors signed a statement condemning the Supreme Court for its affront to the rule of law. The cover of the New Republic showed a picture of the Supreme Court over which was pasted the banner "Disgraced." A distinguished participant in the discussions opined that the Court's intervention was an act so lawless that it could be justified only on pragmatic grounds, and then only had the case been Bush v. Hitler. Another constitutional scholar posted an online note calling the justices in the majority "absolute, utter, contemptible fools." And I don't know how many law teachers have rent their garments and declared that they cannot again look their students in the eyes and teach constitutional law as a serious subject. I will buy lunch for any of these legal scholars who voted for Bush. I will buy dinner for any who favored the Rehnquist Court's decisions on subjects like racial preferences, federalism, and criminal law. And I will send on a 'round the world cruise any of the critics who were hoping that a President Bush would replace present justices who voted for these things with younger justices who were similarly inclined.
My attitude is somewhat different. I applaud-I have even argued for-decisions like Croson and Adarand (limiting racial set asides), Shaw (disciplining racially gerrymandered voting districts), Lopez and Morrison (finding that the Constitution's commerce power is not a grant to Congress to regulate anything which that day strikes its fancy), and Boerne (refusing to allow Congress to overrule the Court's interpretation of the Constitution). And in this very case I filed a brief on behalf of the Florida legislature making just the arguments that so upset the left-liberal academic establishment. But nonetheless it seems to me now-and did then-that there were two sides to these arguments, that Professor Tribe and his colleagues presented a well-argued brief for the other side. And what is the hotly contested constitutional case where this has not been so? I believe the case was correctly decided, but it presents so many intricacies that it is quite possible, as the discussion continues, that doubts may enter and convictions reverse. That, too, is normal. This collection is not the place to attempt a thoroughgoing technical defense of the Court's decision. That has been done excellently and in detail in a book by Richard Posner, and in essays by Nelson Lund in a forthcoming symposium in the Cardozo Law Review, and by Richard Epstein, Michael McConnell, and John Yoo in a collection to be published by University of Chicago Press. Rather, I shall only try to convince you of the reasonableness of Bush v. Gore, of its rightful place among the large number of important Supreme Court decisions on which reasonable minds might differ.
It has been a common theme of the denunciations that the Court's decision was a brutal intervention in the political process transparently designed to assure the selection of a president whose nominees to the Supreme Court would continue the agenda of the present majority. If this were not "vulgarly partisan" enough, the accusation adds the suggestion that some of the justices did not want to see their rumored plans for retirement within the next four years thwarted by the prospect of uncongenial replacements. Only such indefensible motives could explain a decision the critics stated to be inadequately reasoned, devoid of principle, and inconsistent with the doctrinal commitments to federalism and sparing use of the equal protection clause the majority had elsewhere espoused when it suited its reactionary agenda.
Arguments from motive invite a reciprocal search for strategic motives moving those who make them. And if one were inclined to such a search, in this case the motive would not be hard to find: generate public, media, and political hostility in order to stiffen resistance to an uncongenial president's uncongenial judicial appointments (Bruce Ackerman's proposal that no justices be confirmed until 2005 is an example of such an attempt at mobilization).
There is the deeper danger in this descent into accusations of bad faith: it erodes the high respect in which courts are held in this country and so degrades a precious national asset. Justice Stevens's stern warning against this danger of course contributed to it. Gratifying as it is to hunt for ulterior motives, we should be engaged in the more ordinary task of debating the correctness of the case's reasoning, as we do with other Supreme Court decisions.
Some critics seem to think that a case with such big practical consequences should proclaim a principle of equivalent grandeur: prominence in the history books should be matched with equal billing in the case books. Bush v. Gore certainly offers no spectacular breakthroughs in constitutional doctrine, nor did it deal with other problems that have come to light in the Florida vote but were not part of this case. That is because the case was the creature of the lower court decisions it reviewed. The key to seeing the normalcy of this case is just that. There is a good reason why the Court did not consider whether our system of choosing presidents accords with the principles of democracy, or whether the Constitution requires that all who arrive at the polls and attempt a choice should have their votes taken into account, or any other such large proposition. The Court considered the questions presented in a petition for certiorari to review a decision by the Florida Supreme Court. That is what the Court is supposed to do, and that is what it did.
If I insist on viewing Bush v. Gore as regular Supreme Court litigation, then, the critics ask, was not the decision to grant certiorari itself irregular? Justice Breyer opens his dissent: "The Court was wrong to take this case." And Justice Souter: "The Court should not have reviewed ... this case." Other critics have taken up this refrain. The Court has complete control over what cases it takes. The decision not to take a case needs no explanation and is without precedential value. The court has published rules to guide litigants in applying for certiorari. The usual occasion for a grant is some clear and stark conflict in the decisions of the lower federal courts or between those courts and the highest court of a state, crying out for a decision that restores uniformity to the law. The Court's rules also say that review may be granted if the decision below conflicts with one of its own decisions-again a necessity to maintain the structural integrity of the system. And there is the much rarer ground that there is a question of exceptional national importance that requires resolution at the highest level of the judiciary just because it is the highest.
But these are rules only for the guidance of litigants-rules of thumb. The Court may do what it wants, and regularly ignores them. I am sure that the critics of Bush v. Gore applaud the Court's decision in the Virginia Military Institute (VMI) case, but there was no conflict in the circuits in that case and a quite unusual set of circumstances. On the other hand these same critics may have heaved a sigh of relief when the Court denied review in the Milwaukee case allowing the use of state paid vouchers in church-related schools-a decision on a frequently recurring issue of great importance that has put the law into considerable uncertainty. And few complain if the Court occasionally grants review and overturns a decision that seems egregiously wrong or unjust-in a death penalty case, for instance-even though there is no disuniformity in the law or a matter of general importance. Finally, if the Court senses that a decision below distorts or even fails to show proper deference to one of its own prior decisions, no matter how lacking in general significance, it may pounce to enforce respect. Or it may not.
The proper role of pragmatism and principle has long been a staple of Supreme Court commentary. The Court's authority depends on its adherence to principle, and principle is displayed in the coherence and transparency of the reasons it offers for its decisions. In Bush v. Gore, the critics say, the Court got it exactly wrong. It failed to act in a statesmanlike way in the one area where statesmanship is authorized: "The Court was wrong to take this case." And then, having taken the case, it acted in a political, unprincipled way in its actual decision, the point where principle alone should rule. This harsh judgment is unjustified. As I have shown, the Court's decision to take the case was in accord with past practice. Its resolution of the case was as well reasoned as many cases resolving sharply controverted issues. For sheer transparency of reasoning Bush v. Gore stacks up quite well against, say, Romer v. Evans (the Colorado gay ordinance case).
Recall the actual case, the actual petition, that the Court was called to act upon. Only five days earlier (in Bush I) the Court had unanimously vacated an earlier judgment of the Florida Supreme Court and asked the Florida court to clarify the basis for it. The Florida court in Bush II had disregarded the Supreme Court's mandate, and without even adverting to it, had given important effect to its own previous, now vacated, decision. What counsel of prudence dictated that the Court should turn the other cheek to such a clear act of insubordination? Surely not that the selection of the next president of the United States might in part depend on it. If care for the Court's standing bears on its exercise of discretion to take a case, then letting this pass would count as cowardly avoidance of difficulty, of controversy, and of the risk of just the obloquy that the disappointed losers have been heaping on the Court ever since. Cowardice is not prudence.
The critics say that this only locates the Court's folly at the earlier time when it granted certiorari in Bush I. Justice Souter: "The Court should not have reviewed either [Bush I] or [Bush II]." There is some more plausibility to that, although it is undercut by the fact that Bush I was decided by a unanimous Court. But the petition in Bush I had a lot to be said for it too: it presented difficult and important questions of interpretation of provisions of the Constitution (principally Article II, Section 1) and federal law (Title 3 of the U.S. Code). And even the argument I made on behalf of the Florida legislature-that these questions were not justiciable but should be left in the first instance to the state legislature and ultimately to the Congress-might have elicited an important and illuminating response from the Court. (In any event, the Court ignored and therefore may be said to have rejected that argument-surely a significant result in itself.) And to urge a lack of a conflict with other decisions on a question so unlikely to arise, but so important when it does, is irrelevant to the point of captiousness.
But there is more. The Florida court, in a dispute that touched the whole nation, acted in a strangely irregular way. That court had issued a stay no one had asked for and then extended a statutory deadline for certification of election tabulations, relying only on its claim of inherent equitable powers. This was troubling for two reasons. First, it is a serious constitutional question (to which there are certainly two sides) whether state courts are under a special obligation to hew closely to their legislatures' directions in respect to matters bearing on the selection of presidential electors. This question becomes acute when a court not only interprets the relevant state statute in an arguably aberrant way but also takes on an active managerial role nowhere set out in legislation and assigned by law to the secretary of state. The framers rather explicitly rejected putting the control of election procedures for the presidency in the hands of courts, so their specification (in Article II, Section 1, Paragraph 2) that the electors in each state shall be appointed "in such manner as the legislature thereof may direct" may be taken to have been a more pointed conferral of power on legislatures than would have been an assignment of the task to the states generally. (The same is true of the assignment in Article V of special responsibilities to state legislatures in the amendment process.) In its unanimous opinion the Court took this argument seriously:
As a general rule, this Court defers to a state court's interpretation of a state statute. But in the case of a law enacted by a state legislature applicable not only to elections to state offices, but also to the selection of Presidential electors, the legislature is not acting solely under the authority given it by the people of the State, but by virtue of a direct grant of authority made under Art. II, § 1, Cl. 2, of the United States Constitution.
Excerpted from BUSH v. GORE Copyright © 2002 by Yale University. Excerpted by permission.
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|Introduction: The Question of Legitimacy|
|1||An Unreasonable Reaction to a Reasonable Decision||3|
|2||Not as Bad as Plessy. Worse||20|
|3||eroG .v hsuB: Through the Looking Glass||39|
|4||In Partial (but not Partisan) Praise of Principle||67|
|5||The Fallibility of Reason||84|
|6||Sustaining the Premise of Legality: Learning to Live with Bush v. Gore||96|
|7||Can the Rule of Law Survive Bush v. Gore?||110|
|8||A Political Question||129|
|9||Political Questions and the Hazards of Pragmatism||145|
|10||The Conservatism in Bush v. Gore||163|
|11||Does the Constitution Enact the Republican Party Platform? Beyond Bush v. Gore||177|
|13||Legitimacy and the 2000 Election||210|