Bush v. Gore: looking at Baker v. Carr in a conservative mirror.

• Author: Pushaw, Jr., Robert J.
• Position: Federal judicial intervention in state electoral matters

A Southern state engages in electoral shenanigans, thereby precipitating a national crisis. Most United States Supreme Court Justices conclude that the ordinary political process will not remedy the problem. Unfortunately for them, the justiciability doctrines and federalism generally prohibit federal judicial intervention in state electoral matters, absent a clear and egregious violation of the Constitution (such as racial discrimination). Although the state's action strikes these Justices as unfair, it does not run afoul of any federal constitutional provision. Undaunted, they make up new equal protection law and hold that the state has failed to comply with it. Several Justices bitterly dissent that the majority's blatant political interference will erode respect for the Court as the impartial guardian of the rule of law.

Why bother with yet another recap of Bush v. Gore? (1) Because the exact same summary applies to Baker v. Carr. (2) There the Warren Court perceived a crisis that defied a political solution: Tennessee and many other states had always apportioned legislative districts to reflect various interests (e.g., geographic, political, economic, and demographic), often with the aim of maintaining the electoral strength of conservative rural areas vis-a-vis the rapidly growing (and predominantly liberal) cities and suburbs. (3) The Court found justiciable a claim that the Equal Protection Clause required apportionment to be based solely on population, despite the dissenters' arguments that (1) nothing in that Clause, or any other constitutional provision, authorized this result, and (2) the majority had abandoned the principles of judicial restraint embedded in the ideas of stare decisis, justiciability, and federalism.

For the past four decades, the Court has steadfastly adhered to Baker and the "one person, one vote" standard it spawned. Moreover, although some legal scholars initially criticized Baker, within a few years they had generally accepted its validity, and today the opinion meets with near-universal acclaim. (4) In short, Baker is an unassailable twentieth-century landmark.

Therefore, it should hardly be surprising that the Court decided Bush precisely the way it decided Baker. Once again, an electoral emergency arose--the 2000 presidential candidates' deadlock in Florida--that struck the majority as insoluble through normal political channels. Once again, over acrimonious dissents, the Court created an unprecedented equal protection "right" (to state government consistency in counting votes) and ignored concerns for both federalism (which counseled deference to Florida officials as they tried to work out the ballot disputes) and justiciability (which militated against judicial review, at least until the state and Congress had completed their constitutional roles in selecting the presidential electors).

What should raise eyebrows, however, is that Bush v. Gore has caused law professors who have canonized Baker to wail and gnash their collective teeth. (5) If Baker was right, how can Bush be wrong? Because the former reached a liberal result, and the latter a conservative one? Such a nakedly political argument simply will not do, especially if made by mainstream scholars, who have steadfastly justified Warren Court decisions like Baker as grounded in constitutional "law," not "politics." (6) For such intellectuals, consistency demands accepting the correctness of both Baker and Bush. Conversely, those few conservative theoreticians who have condemned Baker as exemplifying Warren Court activism cannot, in fairness, applaud Bush. Rather, they must either swallow Baker or spit out Bush.

For those of us who cling to the quaint notion that the Justices should apply rules of law rather than impose their political preferences, however, the only coherent conclusion is that both decisions were wrong. I will develop this thesis by examining Baker and Bush in turn, then explaining why these two opinions rested upon similarly faulty reasoning and cannot be materially distinguished.

1. THE BAKER EARTHQUAKE AND ITS AFTERSHOCKS

   1. LEGAL BACKGROUND

      Baker broke sharply with over a century of precedent. In Luther v. Borden, (7) the Court deferred to the previous determination of Congress and the President that Rhode Island's government satisfied Article IV, Section 4, which provides that "the United States shall guarantee to every State in the Union a republican form of government." (8) Luther did not hold that all complaints under this "Guarantee Clause" were nonjusticiable. Most pertinently, the Court recognized the validity of Rhode Island's temporary declaration of martial law to meet threats to its very existence, but declined "to inquire to what extent, [n]or under what circumstances, that power may be exercised by a State" before a Guarantee Clause violation would occur. (9) This qualifier would make no sense if the Justices thought they never could consider whether a state's actions ran afoul of that Clause.

      Nonetheless, the Court imposed such an absolute political-question bar in Pacific States Tel. Co. v. Oregon, (10) which dismissed a corporation's claim that a state law passed by initiative rather than statute rendered its government non-republican. (11) Moreover, the Court rejected the corporation's attempt to avoid this result by asserting a separate cause of action under the Fourteenth Amendment, calling this ploy a "superficial" elevation of "form" over "substance." (12) Subsequent cases held all Republican Form of Government issues to be nonjusticiable. (13)

      Applying this precedent, the Court routinely rejected challenges to state apportionment schemes. (14) For instance, in Colegrove v. Green, (15) four of the seven participating Justices affirmed the dismissal of a complaint alleging that an Illinois statute had unconstitutionally established districts for congressional representatives that did not reflect population changes. In the principal opinion, Justice Frankfurter and two colleagues ruled that "[v]iolation of the great guaranty of a republican form of government in States cannot be challenged in the courts." (16) Justice Rutledge assumed the case to be justiciable, but concluded that the district court had equitable discretion to decline to exercise jurisdiction in light of the delicate relationship between Congress and the states in determining congressional districts. (17)

      Many cases followed Colegrove in repelling constitutional attacks on state electoral laws, usually based upon Justice Frankfurter's reasoning. (18) The lone exception to this political question analysis arose when states racially discriminated in electoral matters, thereby violating individual and minority-group rights under the Fifteenth Amendment. (19)

   2. THE BAKER DECISION

      In Baker v. Carr, (20) urban Tennessee voters claimed that a 1901 statute apportioning legislative districts, which had not been amended to account for the large population shift away from rural areas, had unconstitutionally debased their votes. (21) Writing for the majority, Justice Brennan reinvented the political question doctrine in two significant ways.

      First, he asserted that "it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary's relationship to the States, which gives rise to the `political question.'" (22) Hence, Justice Brennan deemed this doctrine inapplicable because the Court was not considering a question decided by a coequal government department, but rather "the consistency of state action with the Federal Constitution." (23) He distinguished numerous cases holding to the contrary (such as Colegrove and its progeny, which emphasized federalism concerns) as grounded upon limits on the federal judiciary's equity power, not justiciability. (24)

      Second, Justice Brennan declared that the presence of a political question could be determined only through a multi-factor "case-by-case inquiry." (25) The most important considerations were "a textually demonstrable constitutional commitment of the issue to a coordinate political department" and "a lack of judicially discoverable and manageable standards for resolving it." (26)

      Applying this new analysis, the Court conceded that the voters' challenge, if made under the Guarantee Clause, would have raised a political question. (27) Nonetheless, it held justiciable the identical claim brought under the Equal Protection Clause. (28) Justice Brennan's entire substantive analysis of this provision consisted of one sentence: "Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action." (29)

      In his concurrence, Justice Clark lamented the majority's decision to rest its ruling on jurisdictional grounds and its "fail[ure] to give the District Court any guidance whatever." (30) Instead, he would have held on the merits that the apportionment statute violated equal protection because Tennessee did not offer any "rational basis" for it. (31) Justice Clark stressed that federal court adjudication was the only practical remedy because other political channels were unavailable. (32) Finally, he argued that the Court should have fashioned a specific remedy with a rational districting plan, because otherwise the district judge might simply declare a constitutional violation in the hope of "blackjacking" the state legislature into acting. (33)

      In dissent, Justice Frankfurter assailed the majority for reversing the uniform precedent holding apportionment to be a political question, like all Republican Form of Government claims. (34) He emphasized the Court's traditional unwillingness to interfere with state governments, absent violation of an explicit, judicially enforceable...