CARNIVAL
OF
MIRRORS:
LAURENCE
TRIBE'S
"UNBEARABLE
WRONGNESS"
Nelson Lund*
Professor Tribe has now done to me just what I claim he did
to the Supreme Court in
eroG
v.
hsuB.
1
By repeatedly distorting
what I actually said,
Unbearable Wrongnesi creates illusory tar-
gets that
Professor Tribe then holds up to ridicule.
3
In
the very
limited space
that
the editors have allotted, I could not possibly
offer point-by-point responses to his many mischaracterizations
of
what I said in the two articles that he attacks.
4
Nor
will I try to
catalo~
the arguments that he left unanswered in his lengthy re-
buttal.
Instead, I will focus on our most significant points of dis-
agreement: whether the Court's rationale for the decision in
Bush
v.
Gore suffers from an "almost embarrassing bank-
* Patrick Henry Professor
of
Constitutional Law and the Second Amendment
and Foundation Professor
of
Law, George Mason University School of Law.
I.
Laurence
H.
Tribe, eroG
v.
hsuB and its Disguises: Freeing Bush
v.
Gore
from
its Hall
of
Mirrors, 115 Harv. L. Rev. 170 (2001) ("Tribe, eroG
v.
hsuB").
2.
Laurence H. Tribe, The Unbearable Wrongness
of
Bush
v.
Gore,
19
Const.
Comm.
571
(2002) ("Tribe, Unbearable Wrongness").
3.
Perhaps the most ridiculous thing I'm accused
of
saying
is
that Professor Tribe's
eroG
v.
hsuB
is
"unexceptional."
Id.
at
572
&
n.3.
Fortunately for me, however, what
Professor Tribe calls a "direct quotation"
is
an outright misquotation. In fact, I said al-
most the opposite,
viz. that much of his essay
is
"quite unexceptionable." Nelson Lund,
"EQUAL
PROTECTION,
MY
ASS!"? Bush
v.
Gore and Laurence Tribe's Hall
of
Mir-
rors,
19
Const. Comm. 543,544 (2002) ("Lund,
"EQUAL
PROTECTION
...
"?").
4.
For just one illustrative example, consider the following passage: "Professor
Lund attempts to dismiss the importance of Davis on the ground that it was merely a plu-
rality opinion. Apparently, the reader
is
supposed to believe that, because Davis com-
manded no clear majority, the case
is
not good law. I trust Professor Lund
is
kidding."
Tribe, Unbearable Wrongness at
580
n.42 (cited in note
2).
I invite the reader to compare
this passage, and the rest
of
footnote
42,
with what I actually said
in
Lund,
"EQUAL
PROTECTION
...
"? at
553
n.35, 559-60 (cited
in
note 3). Nowhere did I say
or
imply
that the absence
of
a majority opinion in Davis means that the case
or
decision
is
not
"good law."
Cf.
Tribe, Unbearable Wrongness at
576
& n.18 (cited in note 2) (attributing
a statement in the plurality opinion in the
Casey abortion case to
"the
Court itself').
5.
For
one example, see Lund,
"EQUAL
PROTECTION
...
"? at 554-55 (cited in
note 3) (criticizing
Professor Tribe's defense of the Florida court's treatment of the par-
tial recount in Miami-Dade).
609
610
CONSTITUTIONAL
COMMENTARY
[Vol. 19:609
ruptcy,"
6
and whether the Court was legally prohibited from de-
ciding the case at all. These are the important issues, and it
is
important to keep in mind that Professor Tribe's attacks
on
me
are significant only because he desperately needs to show that
any legal defense
of
the Court
is
silly.
That
is
the only way to
sustain his own claim that the Court was playing a shell game in
Bush
v.
Gore/
or
as
he now says, that the Court's decision de-
serves to be greeted with
"head-scratching incredulity."
8
Profes-
sor Tribe's claim
is
not just that Bush
v.
Gore was wrongly de-
cided, but rather that no reasonable person could defend the
decision.
That
is
an extraordinarily serious accusation against the
Court, and I say that the accusation
is
itself outrageous.
I.
EQUAL
PROTECTION
First, Professor Tribe ignores the distinction that I and all
the Justices have drawn between what we may think
is
the
"original meaning" of various constitutional provisions and what
the Court's cases say they mean.
9
Most importantly, neither I nor
the
Bush
v.
Gore majority argued that Reynolds
v.
Sims was
rightly
decided.
10
Notwithstanding Professor Tribe's repeated ef-
forts to saddle me with the deep perplexities
that
are attributable
to the
Reynolds line
of
cases, I have neither the power to change
the opinion that Chief Justice
Warren
wrote,
nor
the power to
overrule any decision. Unlike me, the
Bush
v.
Gore Court did
have the power to overrule the well-settled
Reynolds line of
cases. But neither Professor Tribe nor anyone else that
I'm
aware
of
has criticized Bush
v.
Gore for accepting this line
of
precedent.
The
real issue
is
whether the Court applied those prece-
dents correctly. I have argued that the decision in
Bush
v.
Gore
6.
Tribe, Unbearable Wrongness at
573
(cited in note 2).
7.
Tribe, eroG
v.
hsuB at 221-22 (cited in note 1) (quoted in part in Lund,
"EQUAL
PROTECTION
...
"? at 543-44 n.2 (cited in note 3)).
8.
Tribe, Unbearable Wrongness.
at
571(cited in note 2). See also id. at
575
(charg-
ing that
"the
[equal protection] holding was
"not
just incorrect but utterly bizarre") (em-
phasis in original);
id.
at
601
n.118
(apparently claiming that the case contained no "col-
orable claims for federal relief').
9.
If
this has contributed to
my
being labeled "deeply, deeply, shallow," so be
it.
See id. at
572.
10.
I specifically called Justice Harlan's dissent in that case "devastating and unan-
swered," and I explained at some length
why
I agreed with a good part of Professor
Tribe's analytical critique of the vote dilution theory that I say arose in and from Rey-
nolds. Nelson Lund, The
Unbearable Rightness
of
Bush
v.
Gore,
23
Cardozo
L.
Rev.
1219, 1262 (2002)
("Lund, Unbearable Rightness"); Lund,
"EQUAL
PROTECTION
...
"?
at
556-61
(cited
in
note 3).
2002]
CARNIVAL
OF
MIRRORS
611
flows easily from the Reynolds line, and I believe
I'm
right about
that. But I do not claim that anyone who advances a different in-
terpretation of the Court's equal protection precedents must be
greeted with the kind of mockery that Professor Tribe directs at
the
Supreme Court and me.
11
At
least since the day the Court
concluded that
"the
equal protection
of
the laws" means
"the
protection
of
equal laws,"
1
the jurisprudence
of
this constitu-
tional provision has been a never-ending exercise in drawing ju-
dicially-created lines between permissible and impermissible
forms
of
inequality. All,
or
almost all,
of
the Court's equal pro-
tection decisions can therefore
be
defended with some sort of
reasoned argument,
as
well
as
criticized with some sort
of
rea-
soned argument. In this respect, Bush
v.
Gore
is
just like the
others.
But Professor Tribe has not contented himself with making
a reasoned argument against the Court's application
of
its equal
protection precedents. Instead, he has taken upon himself the far
more difficult burden of
demonstratin¥ that Bush
v.
Gore was
"not just incorrect but utterly bizarre."
1
Unless
he
can meet that
burden, his indictment
of
the Court
is
highly irresponsible.
And
he does not meet the burden. Professor Tribe's first major criti-
cism of my defense
of
Bush
v.
Gore essentially boils down to
this: the broad principle of equal protection that I quoted from
Reynolds
v.
Sims
14
cannot imply that Bush
v.
Gore was right
to
"mandate[ ] precisely drawn and completely uniform standards
for recounting electoral
ballots"
15
because such a constitutional
requirement would lead to a host
of
inconsistencies and even ab-
II.
See Lund,
"EQUAL
PROTECTION
...
"? at553 (cited in note 3) ("The nature
of the Supreme Court's equal protection jurisprudence has produced a huge range of
cases in which a decision either
way
would
be
neither indisputably correct nor impossible
to defend. Bush
v.
Gore falls within that range, though the Court's holding
is
extremely
easy to
defend.").
12.
Yick
Wo
v.
Hopkins,
118
U.S.
356,
369 (1886).
13.
Tribe, Unbearable Wrongness at
575
(cited in note
2)
(emphasis in original).
14.
"Weighting the votes of citizens differently,
by
any method
or
means, merely
because of where they happen to reside, hardly seems justifiable.
One must be ever
aware that the Constitution forbids 'sophisticated as
well
as simpleminded modes
of
dis-
crimination."'
377
U.S. at
563
(citations omitted). As I have already explained at length,
the Reynolds opinion as a whole confirms that the Court was relying on a principle that
went
well
beyond the malapportioned legislative districts that were directly at issue. See
Lund, Unbearable Rightness at
1244-51
(cited in note 10); Lund,
"EQUAL
PROTECTION
...
"?
at 551-53 (cited
in
note 3).
15.
Tribe, Unbearable Wrongness at 572 (cited in note
2)
(emphasis added). See
also
id.
at 586 (apparently implying that the Court and I maintain that "the Constitution
requires that all ballots be treated
identically" (emphasis in original)); id. at 587-88
(claiming that the Court demanded that any right to vote for President must be
"per-
fectly uniform").
612
CONSTITUTIONAL
COMMENTARY
(Vol. 19:609
surdities.
16
1t
is
true that the Court and I both interpret Reynolds
to stand for a principle broader than the requirement
of
equi-
populous legislative districts.
So
does Professor Tribe, at least
some of the tirne.
17
But neither the Court nor I interpreted Rey-
nolds
to entail the many absurdities that would no doubt follow
if it required
perfect equality
or
complete uniformity.
Professor Tribe's argument would have considerable merit
if he had correctly described the holding in
Bush
v.
Gore.
But
he
has not.
Bush
v.
Gore pointed to several different instances
of
serious, unjustified, and avoidable nonuniformity in the recount
ordered by the Florida court, and concluded that the recount or-
der did not satisfy
"the
minimum requirement for nonarbitrarX
treatment
of
voters necessary to secure the fundamental right."
8
The Court certainly did say that the formulation
of
uniform rules
was practicable and necessary,
19
but it never said that these rules
must be
"precisely drawn"
or
"completely" uniform. Whether
one agrees with the Court's equal protection analysis
or
not, no-
body should put these words into the Court's mouth, as
Profes-
sor Tribe does, and then mock the Court for having said some-
thing utterly bizarre and foolish.
Recognizing that
"the problem
of
equal protection in elec-
tion processes generally presents many
complexities,"
20
Bush
v.
Gore refrained from trying to elaborate a comprehensive set
of
rules for determining exactly how much and what kinds
of
non-
uniformity are constitutionally proscribed in each
of
the various
factual contexts that can arise in counting ballots. I think the
Court's decision to rule narrowly made good sense, for reasons
that I have already explained in detail.
21
Someone else might ar-
16.
See, e.g.,
id.
at 587
("
...
Bush
v.
Gore appears to put states in a Catch-22: the
failure to specify a uniform statewide substandard for recounting may risk invalidation
under the 'arbitrariness' principle, while the decision to specify such a substandard may
inadvertently treat ballots unequally.") (emphasis in original).
17.
See, e.g., Tribe, eroG
v.
hsuB at
224
(cited
in
note 1) ("No one doubts
that
the
Reynolds line would prevent a state from adopting a system in which those who tally ma-
chine-rejected ballots manually are instructed to toss out ballots with ambiguous marks
indicating an intent to vote for Bush but to count all the votes for
Gore."). See also Lund,
"EQUAL
PROTECTION
...
"? at 550-53 (cited in note 3) (discussing Professor Tribe's
inconsistent statements about the breadth
of
Reynolds' reach).
18.
Bush
v.
Gore,
531
U.S. 98,105 (2000).
19.
ld. at
106.
20.
Id. at
109.
21.
Lund, Unbearable Rightness at 1267-69 (cited in note 10). It could hardly be
maintained that the Court had some kind of obligation to answer the myriad questions
that undoubtedly do remain open after Bush
v.
Gore.
It
is
typical, rather than unusual,
for equal protection rulings to generate many more questions than they answer. Familiar
examples include Reynolds
v.
Sims and Brown
v.
Board
of
Education.
2002]
CARNIVAL
OF
MIRRORS
613
gue, without embarrassing himself, that the Court should have
provided more detailed guidance for future cases. But that
is
not
the argument that
Professor Tribe advances.
Instead,
he
insists that the Court was obliged to consider,
sua sponte, hypothetical equal protection objections to the un-
derlying count in Florida, and then rule
on
the basis
of
"facts"
that had never even been argued to the Court, let alone tested in
a trial. His principal argument, as I understand it,
is
that the un-
derlying count was infected with uniformity problems at least as
serious
as
those that the Supreme Court identified in the recount
ordered by the Florida court.
22
It
may
or
may not be true that a
properly litigated challenge to the underlying count should have
resulted in its being invalidated under the equal protection stan-
dards relied
on
in Bush
v.
Gore.
But
we will never know, be-
cause Gore's legal team never even argued (let alone proved)
that the underlying count suffered from uniformity problems
comparable to those in the court-ordered recount.
23
One
must ask why the brief that Professor Tribe filed in the
Supreme Court
didn't articulate such
an
objection-one
which
Professor Tribe now finds so
compelling-in
response to the
Bush team's equal protection arguments.
Perhaps it had some-
thing to do with the fact that
Professor Tribe's brief did object to
allowing his opponents to challenge the underlying count.
24
But
let
us
assume that Gore's legal team could not have been ex-
pected to realize the importance
of
comparing
the
nonuniformity
in the court-ordered recount with that in the underlying count
until after the Court's decision in Bush
v.
Gore. Even
on
that
generous assumption, Gore got that chance after the
U.S. Su-
preme Court remanded the case
to
the Florida Supreme Court:
he could have argued to the Florida court that equal protection
problems in the underlying count required a new recount consis-
22.
See Tribe, eroG
v.
hsuB at 254-63 (cited
in
note 1).
23.
In support
of
his suggestion that this issue was somehow before the Supreme
Court,
Professor Tribe cites only an amicus curiae brief. Tribe, Unbearable Wrongness at
589
n.79 (cited
in
note
2).
I'll spare the reader a disquisition on the differences between
parties and
amici. Quite apart from that issue, the amicus brief cited
by
Professor Tribe
made no effort to compare the inequalities in the underlying count with those
in
the
court-ordered recount. Indeed, and notwithstanding
Professor Tribe's description, the
brief did not discuss the Florida election dispute at all.
24.
Brief of Respondents at 35, Bush
v.
Gore,
531
U.S.
98
(2000), ("Petitioners'
Fourteenth Amendment arguments rest principally on the assertion that, if the manual
count proceeds, similar ballots
will
be
treated dissimilarly in different parts
of
the State.
We note that, insofar
as
this argument
is
directed at pre-contest tabulations, it
is
out
of
place here; petitioners should have raised such claims in an election contest of their
own.").