Bush v. Gore and the boundary between law and politics.

• Author: Balkin, Jack M.

Shortly after the Supreme Court's 5-4 decision in Bush v. Gore,(1) one member of the majority, Associate Justice Clarence Thomas, addressed a group of students in the Washington, D.C., area. He told them that he believed that the work of the Court was not in any way influenced by politics or partisan considerations.(2) This speech was widely reported in the press. Afterwards the question on many legal scholars' minds was not whether Justice Thomas had in fact made these statements. The question was whether he also told the students that he believed in Santa Claus, the Easter Bunny, and the Tooth Fairy.

It is no secret that the Supreme Court's decision in Bush v. Gore has shaken the faith of many legal academics in the Supreme Court and in the system of judicial review.(3) It is worth considering why this should be so. Legal academics rationalize bad judicial decisions all the time; that is part of their job description. Moreover, the fact that a few judges occasionally make mistakes in legal reasoning, even very egregious mistakes, should come as no surprise, nor should it cause one to lose faith in the rule of law, the U.S. Supreme Court, or in the system of judicial review. Likewise, the fact that a few judges occasionally decide cases because they secretly favor one party over another should also come as no surprise; nor should isolated examples of judicial corruption cause one to lose faith in a larger process of legal decisionmaking. The problem with Bush v. Gore, I suspect, was the case was too salient an example of judicial misbehavior for many legal academics to swallow. It was no isolated fender bender in which a local judge helped out the son of a former law partner. Rather, the case decided the outcome of a presidential election and may well have determined who would sit on the Supreme Court and the lower federal courts for decades to come. Moreover, unlike the judge deciding the case of a fender bender in some obscure venue, the Court could not have tailed to recognize that all eyes were upon it. That the conservative Justices acted as they did suggested that their partisanship was so thorough and pervasive that it blinded them to their own biases. It seemed as if they had lost all sense of perspective.

In addition, Bush v. Gore was troubling because it suggested that the Court was motivated by a particular kind of partisanship, one much more narrow than the promotion of broad political principles through the development of constitutional doctrine. The distinction is between the "high" politics of political principle and the "low" politics of partisan advantage.(4) The same five conservative Justices who formed the majority in Bush v. Gore had been engaged, for over a decade, in a veritable revolution in constitutional doctrines concerning civil rights and federalism.(5) In those decisions, the five conservatives had been promoting a relatively consistent set of ideological positions like colorblindness, respect for state autonomy from federal interference, and protection of state governmental processes from federal supervision. But the decision in Bush v. Gore did not seem to further those values, at least not directly. Rather, the five conservatives seemed to adopt whatever legal arguments would further the election of the Republican candidate, George W. Bush. This is the "low" politics of partisan political advantage. Although few legal academics these days are shocked to learn that Justices' decisions are "political" in the sense that they promote "high politics"--larger political principles and ideological goals--they were quite disturbed by the possibility that Justices would use the power of judicial review in so prominent a case to promote the interests of a particular political party and install its candidates in power.

Indeed, the appearance, if not the reality, of this kind of partisanship in Bush v. Gore casts an unsavory light on the constitutional revolution of the last decade. It was widely speculated before and after the election that several of the Justices might retire within the next few years. By intervening in the election, the five conservatives installed a President who would appoint their colleagues and successors and would stock the federal judiciary with like-minded conservatives. Bush v. Gore was troubling because the five conservatives appeared to use the power of judicial review to secure control of another branch of government that would, in turn, help keep their constitutional revolution going. It is one thing to entrench one's constitutional principles through a series of precedents. It is quite another to entrench one's ideological allies by directing the outcome of a presidential election.

Because law professors are perhaps as committed to the legitimacy of the courts and the legal system as anyone else, Bush v. Gore will require them to reduce cognitive dissonance in manifold ways. Many of these forms of dissonance reduction have already begun. In this Essay, I discuss five features of the opinion. In Part I, I discuss the constitutional issues in Bush v. Gore and explain why so many people thought the Court's opinion was unpersuasive. In Part II, I consider the Court's institutional role and whether its choice to intervene in the election dispute was justified. Part III discusses the jurisprudential implications of Bush v. Gore--and in particular its relationship to two very well-known theories of jurisprudence, American Legal Realism and Critical Legal Studies. Part IV considers the place of Bush v. Gore in the "legal canon"--how the case will be understood, taught, and remembered. Finally, Part V offers a few suggestions about what the case means for the Court's legitimacy, both in action will be strongly disfavored whether practiced by the federal government or by the states, see Adarand Constructors v. Pena, 515 U.S. 200 (1995). the short term and in the long run. It also argues that, because of important structural features of the American Constitution, party politics provides the best remedy for the Court's actions.

1. THE LEGAL ARGUMENTS IN BUSH V. GORE

   The Supreme Court intervened in the 2000 election not once but three times. Only the last two of these interventions are called Bush v. Gore. The first opinion, Bush v. Palm Beach County Canvassing Board,(6) followed the Florida Supreme Court's November 21 decision to extend the time for ballot certification past the date set by Florida statute.(7) The Supreme Court granted certiorari, and heard the case on December 1. Shortly after the oral argument began, the Court discovered that it had misplayed its hand. The Justices apparently thought that, by intervening in a dispute over certification, they could lend their enormous prestige to settling the nation's election crisis once and for all. By the time oral arguments began, however, they had discovered two embarrassing facts. First, the certification had already occurred. Nothing they could do in the case before them would change the outcome of the election contest that had begun in Florida after they granted an appeal. Second, they were badly divided along ideological lines, and any decision on the merits might undermine their own legitimacy. In important decisions like Brown v. Board of Education(8) and the Nixon tapes case, United States v. Nixon,(9) the Court has chosen to speak unanimously in order to enhance its authority and to avoid the appearance that such momentous decisions are motivated by partisan politics.(10) So the Justices effectively punted, unanimously voting to send the case back to the Florida Supreme Court with instructions on how to rewrite its opinion to avoid creating a federal question.

   Then on Friday, December 8, the Florida Supreme Court ordered a statewide recount of ballots,(11) But instead of the unanimous ruling it had offered a few weeks before, it split 4-3. The next day, the U.S. Supreme Court took the case a second time, again using its discretionary power of certiorari. It granted a temporary stay of all recounts in Florida.(12) The December 9 per curiam order in Bush v. Gore was accompanied by two opinions: one by Justice Scalia arguing in support of the stay, and one written by Justice Stevens and joined by the other three liberal Justices dissenting from the stay. Grounds for granting such a stay require both probable success on the merits and a showing of irreparable harm if the stay is not granted. Granting the stay showed that the five most conservative Justices were inclined to rule in Bush's favor without further argument. But how could Bush have been irreparably harmed by letting the recounts continue? One would think that the irreparable harm would be to Gore, who would not be able to get a recount finished in time. (Remember that at the point the stay went into effect, Gore was less than two hundred votes behind and there was every possibility that if the recount had continued for several more hours Gore would have pushed ahead.)(13) Justice Scalia's opinion argued that "[t]he counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner [George W. Bush], and to the country, by casting a cloud upon what he claims to be the legitimacy of his election."(14) Put another way, the threat to the legitimacy of Bush's presidency was real and palpable, while the harm to Gore's chances of proving that he had actually won more votes in Florida was less important. This view makes perfect sense if the Court had already made up its mind that Bush would win the case and become president.(15) By now the ideological fissures that the high court had bravely tried to paper over had become starkly apparent.

   The Court's third and final intervention occurred on December 12, when it issued a per curiam opinion, also titled Bush v. Gore.(16) The per curiam opinion was not signed, but it is generally thought to be primarily the work of Justice Kennedy.(17) It was joined by...