Bush v. Gore. Implications for future federal court practice.

• Author: Jarvis, Robert M.

It has been just about two years since Bush v. Gore, 531 U.S. 98 (2000), the U.S. Supreme Court's extraordinary decision that ended the debate over how to count the ballots in Florida and unofficially declared a winner in the 2000 presidential election. (1) Although numerous legal commentators have weighed in on the opinion--including, most notably, Judge Richard A. Posner of the Seventh Circuit (2) and Professor Alan M. Dershowitz of the Harvard Law School (3)--they have tended to focus on whether the Court properly resolved the constitutional issues or how the case will be viewed by history. (4)

In this article, I wish to consider the Court's decision from a different vantage point. Specifically, I am curious about how it might change future federal court practice.

Actual Impacts

To a certain degree, of course, the decision's impact on the federal courts already is clear. First, and most obvious, it made George W. Bush rather than Al Gore the President of the United States. In doing so, it ensured that for the next four years, more conservative nominees will be appointed to the federal bench (including possibly the Supreme Court itself), the government will be more solicitous to the interests of business in fields in which federal law predominates, and federal agencies will be content to follow existing law rather than looking for ways to expand it. (5)

Second, the intense media coverage surrounding the decision has raised the profile of the Supreme Court and, to a lesser degree, the entire federal court system. (6) Americans now are keenly aware of the Supreme Court in a way they have not been since the heyday of the Warren Court.

The Court's new-found celebrity status helps explain why this past spring saw the debut of not one, but two, prime-time television series about the Court (ABC's "The Court" and CBS's "First Monday"). Although both were quickly canceled, the fact that the networks were willing to invest the time and effort needed to produce hour-long dramas--and fill them with such well-known (and high-priced) stars as Sally Field and James Garner--speaks volumes about what Hollywood thinks of the Court's current place in society. (17)

Third, the decision reaffirmed the importance the Court places on institutional unity, as evidenced by the fact that its judgment came in the form of an unsigned per curiam opinion. (8) At the same time, the accompanying individual rulings (a concurrence by Chief Justice Rehnquist and dissents by Justices Breyer, Ginsburg, Souter, and Stevens) make it clear the Court remains what it has been for the past 30 years: a deeply divided and politically riven institution. (9)

Fourth, although the Court declined to allow the press to broadcast the oral arguments live, it did make available, on an expedited basis, an audiotape of the proceedings. (10) By doing so, we are one step closer to allowing the public to see for itself what occurs inside federal courtrooms. (11)

Fifth, the decision has profoundly affected law schools. Because of the unprecedented role the Court played in the election, student interest in such subjects as election law, federalism, and separation of powers has skyrocketed. (12) Indeed, not since the days of Watergate have law schools had to so quickly bulk up their constitutional law curriculums.

Lastly, it seems safe to say that every future discussion of persuasive appellate advocacy will include at least one reference to the unfortunate attorney who addressed Justice Stevens as Justice Brennan and Justice Souter as Justice Breyer, thereby leading a bemused Justice Scalia to explain, "Mr. Klock, I'm Scalia." (13)

Possible Impacts

Although the Court took pains to limit the precedential value of its opinion, (14) decisions of the Supreme Court, once released, tend to take on lives of their own and often lead to unintended consequences. (15) In this instance, it appears there are nine areas in which Bush v. Gore could work a surprising change in future federal court practice.

* Ripeness

The Supreme Court requires that cases be ripe for adjudication. Yet at the time that Bush v. Gore was orally argued on Monday, December 11, nothing definitive had taken place. Although Secretary of State Katherine Harris had certified Bush as the winner of Florida's 25 electoral votes, recounts were proceeding across the state under guidelines devised by Circuit Court Judge Terry P. Lewis. (16) Had those recounts reconfirmed Bush's victory, as we now know they would, (17) there would have been no dispute. As such, it appears that by jumping in prematurely, the Court substantially relaxed the rules regarding when a claim is ripe. (18)

* Standing

One issue that was never raised before the Supreme Court was whether George Bush had standing. Instead, the Court simply assumed he did and proceeded to consider the merits. (19) Yet as we know, standing is an essential prerequisite in federal court litigation.

To have standing, a party must be able to demonstrate that it has been injured. But when Bush appealed to the Supreme Court on Friday, December 8, he had no real injury. Although he had just lost for the second time at the Florida...