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The Liberal Legacy of Bush v. Gore

AbstractThis article examines the last ten years of the Rehnquist Court, which was divided evenly by the Court's highly controversial intervention in the 2000 presidential election, Bush v. Gore. I compare the Court's record before and after that decision both qualitatively and quantitatively, and argue that the Court shifted noticeably to the left, particularly in high-profile cases, after Bush v. Gore, as conservative Justices showed a greater willingness to side with their liberal colleagues to reach liberal results. I hypothesize that this may have reflected an effort, conscious or subconscious, to restore the Court's legitimacy by counteracting images of a partisan body divided along political lines. I also suggest that the same interest in restoring the legitimacy of the Court may have contributed to the Court's substantive emphasis on the values of the rule of law, which was particularly evident in the Court's enemy combatant decisions of 2004 (and for that matter, more recently, in the Court's decision on military tribunals in Hamdan v. Rumsfeld). This "liberal legacy" of Bush v. Gore illustrates one of the checking functions on judicial supremacy - namely the need to maintain the appearance (and reality) that law is distinct from politics. Whether the "Bush v. Gore effect" will continue with the Roberts Court remains to be seen.

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Book ChapterDOI
Abstract: Bush v. Gore was a straightforward and legally correct decision. For more than a quarter century, the Supreme Court has treated the stuffing of ballot boxes as a paradigmatic violation of the Equal Protection Clause. Much more subtle and indirect forms of vote dilution have also been outlawed. Like some of those practices, the selective and partial recount ordered by the Florida Supreme Court may have been an inadvertent form of vote dilution. But that recount had effects that were virtually indistinguishable from those in the paradigmatic case. There is no meaningful difference between adding illegal votes to the count and selectively adding legal votes, which is what the Florida court was doing. The Supreme Court rightly concluded that the vote dilution in this case violated well-established equal protection principles. Nor did the Supreme Court err in its response to this constitutional violation. Although the Court acted with unprecedented dispatch after the Florida court's December 8, 2000 decision, it was highly improbable that a legally proper recount could be conducted by the December 18 deadline set by federal law. And it was quite impossible for such a recount to meet the December 12 deadline that the Florida court itself had found in Florida law. Contrary to a widespread misconception, the U.S. Supreme Court properly accepted the Florida court's interpretation of state law and provided that court with an opportunity to reconsider its own interpretation of state law. When the clock ran out, it was entirely due to mistakes and delays attributable to the Florida court. The Supreme Court's majority opinion has been subjected to a barrage of political criticisms of a kind that might more fittingly be directed against a Senate Majority Leader or a Secretary of State. Ironically, it is precisely because the Justices correctly applied the law that they have been accused of having partisan motives.

5 citations

Posted Content
Abstract: Bush v. Gore is not defensible doctrinally. The opinion is unsound on a number of grounds, including equal protection, standing, political question, and remedies. Indeed, the lack of doctrinal foundation in the opinion is so transparent that even the case's few defenders tend to rest on the grounds offered by the concurrence rather than the majority.Bush v. Gore also does not neatly fit within the Court's traditional approach to constitutional principles of federalism and separation of powers. The opinion gives little or no regard to the state court's construction of its own law and little or no deference to the constitutional provisions that delegate the resolution of electoral disputes of the type at issue in the case to the Congress and not to the courts.These doctrinal and theoretical weaknesses have led numerous observers to roundly condemn the opinion. These academic attacks, even if accurate, however, may fundamentally misconceive what the case was truly about. Bush v. Gore cannot be understood as about legal doctrine. Rather, it is a case that tests the limits of the Court's ability to go beyond traditional legal analysis to achieve what it deems to be a just result — a case that attempts to achieve what others have dubbed “rough justice.” Seen in this light, the fact that the Court did not follow traditional analysis in order to reach its decision is not, taken alone, fatal. Nor is it unprecedented. As this essays shows, the Supreme Court, prior to Bush v Gore, had decided cases with little or no reference to established legal principle in order to achieve “rough justice.” Indeed, in all likelihood, the Supreme Court will continue to exercise this power to act when circumstances so dictate.The question of whether Bush v. Gore was based on sound legal principle thus does not end the inquiry. Even if the decision was not doctrinally or theoretically sound, there remains the question of whether the Court nevertheless acted illegitimately. This inquiry may then be broken down into two sub-parts: 1) Was the Court justified in intervening in this case to attempt to achieve rough justice? 2) If intervention was appropriate, did the Court reach the right result?This essay addresses these issues. Part I of the paper discusses whether Supreme Court intervention to accomplish rough justice in this case was warranted. Part II of the paper then addresses the question of whether, if judicial intervention was appropriate, the Court exercised the power correctly in this case. As will subsequently become clear, I conclude that although the Court's intervention was indeed appropriate, it ultimately reached the wrong result in its decision.

3 citations

Journal ArticleDOI
Abstract: In an earlier article, Two Concepts of Judicial Independence, 72 So. Cal. L. Rev. 535 (1999), I developed a taxonomy of meanings for the idea of "judicial independence" that draws on Sir Isaiah Berlin's distinction between negative and positive concepts of liberty. The constraints on judicial action range along a rough continuum ? from those that raise concerns even under an exclusively negative conception of judicial independence, such as freedom from physical intimidation or freedom from direct pecuniary consequences, to those that pose problems only under an extremely robust positive conception, such as freedom from review by higher courts, freedom to ignore precedents, and freedom to pursue a conception of the good or the just that flies in the face of enacted statutes. In this essay, prepared for a symposium at Ohio State, I apply that framework to the litigation surrounding the presidential election of 2000. I show how that litigation implicated a number of aspects of judicial independence. With respect to the justices of the Florida Supreme Court, I discuss questions such as the effect of their status as popularly elected officials, the peculiar relationship among the branches of government in presidential election cases, and their position within the judicial hierarchy. With respect to the members of the United States Supreme Court, I discuss the implications for judicial independence of potential personal stakes in the outcome of the litigation; individual Justices' desire to influence the future composition of the Court; and the Court's freedom from direct political control. Finally, I discuss the ways in which the U.S. Supreme Court's decision in Bush v. Gore reflects two particularly assertive and troubling assertions of judicial independence. First, the Court saw itself as free to determine the meaning of Florida law for itself, without regard to the views of the Florida Supreme Court. Second, the per curiam opinion asserted the Court's freedom from the pervasive constraints on an individual judge's ability to pursue her own ends that precedent and stare decisis normally impose. The litigation surrounding the presidential election of 2000 illustrates a central point about judicial independence: we need to ask quite carefully what constraints judges ought to be free from, and what constraints judges ought to be bound by. In the end, judicial independence is not a single concept, but a constellation of different sorts of autonomy. Not every assertion of judicial autonomy is equally justifiable. Particularly when courts adopt aggressively independent stances, we must measure assertions of judicial autonomy against the competing claims of other actors within our system of democratic self-government.

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01 Jan 2001

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01 Jan 2002

5 citations

Journal ArticleDOI
Abstract: This article is a response to a piece by Robinson Everett, principal lawyer for the plaintiffs in a series of challenges to North Carolina?s post-1990 congressional redistricting collectively referred to as the Shaw cases. In it, I argue that the Shaw cases reflect a ?structural? notion of equal protection, in which the clause is detached from the protection of any identifiable injury to a particular individual and is instead used to regulate the political process itself. In particular, I focus on the concept of standing to show how incongruous the Shaw cases are. I then argue that Bush v. Gore is also a structural equal protection case. It raised quite similar issues of standing, remedies, judicial respect for the states and the political branches, and the frame within which to assess equal protection claims. In particular, using the resources of the Stanford Law Library's Election 2000 website, which contains virtually all the legal documents filed in the Florida recount cases, I show that Bush v. Gore raises serious questions of standing with respect to the equal protection clause claim with which the Supreme Court ultimately disposed of the case.

5 citations

Book ChapterDOI
Abstract: Bush v. Gore was a straightforward and legally correct decision. For more than a quarter century, the Supreme Court has treated the stuffing of ballot boxes as a paradigmatic violation of the Equal Protection Clause. Much more subtle and indirect forms of vote dilution have also been outlawed. Like some of those practices, the selective and partial recount ordered by the Florida Supreme Court may have been an inadvertent form of vote dilution. But that recount had effects that were virtually indistinguishable from those in the paradigmatic case. There is no meaningful difference between adding illegal votes to the count and selectively adding legal votes, which is what the Florida court was doing. The Supreme Court rightly concluded that the vote dilution in this case violated well-established equal protection principles. Nor did the Supreme Court err in its response to this constitutional violation. Although the Court acted with unprecedented dispatch after the Florida court's December 8, 2000 decision, it was highly improbable that a legally proper recount could be conducted by the December 18 deadline set by federal law. And it was quite impossible for such a recount to meet the December 12 deadline that the Florida court itself had found in Florida law. Contrary to a widespread misconception, the U.S. Supreme Court properly accepted the Florida court's interpretation of state law and provided that court with an opportunity to reconsider its own interpretation of state law. When the clock ran out, it was entirely due to mistakes and delays attributable to the Florida court. The Supreme Court's majority opinion has been subjected to a barrage of political criticisms of a kind that might more fittingly be directed against a Senate Majority Leader or a Secretary of State. Ironically, it is precisely because the Justices correctly applied the law that they have been accused of having partisan motives.

5 citations