The politics of Bush v. Gore.

• Date: 22 September 2001
• Author: Lee, Evan Tsen
• Published date: 22 September 2001
• Author: Lee, Evan Tsen

In the mid-1970s, a movement known as Critical Legal Studies ("the Crits") burst onto the law school scene. The Crits were leftist law professors disillusioned by the demise of the Warren Court. Impatient for further progressive judicial action, they upbraided mainstream legal liberals for insisting on "principle" and adherence to the "rule of law." (1) The Crits famously claimed that "all law is politics" (2) --a slogan that first-year law students, in their intellectual bewilderment, found comforting because it made their world simple. Right-wing judges act on the basis of their political beliefs; why shouldn't left-wing judges? Indeed, a judge is incapable of doing anything but acting on political beliefs, the Crits screamed. But by the 1990s, cooler heads had prevailed. Legal academics resumed talking as if the rule of law meant something. Critical Legal Studies had lost its momentum.

Then came Bush v. Gore (3) As a piece of legal reasoning, the decision is so thin that legal liberals, who for twenty-five years stood against the Crits and their mantra of "all law is politics," have now thrown up their hands and conceded the point. Ronald Dworkin, who has made a brilliant career out of insisting that the Supreme Court makes America a nation of principle, wrote that he can find no reason to think that the majority in Bush v. Gore was doing anything other than trying to recruit conservative reinforcements onto the Court. (4) Bruce Ackerman, who has long struggled against the view that law is nothing more than politics, has concluded that the conservative justices in the Bush v. Gore majority quite simply arranged for their own succession. (5) Ackerman openly fears a resurgence of the Crits: "I fear that Bush v. Gore will provoke another great renaissance of legal nihilism in our nation's law schools, a cynicism that will slowly erode general confidence in the system." (6) Both Dworkin and Ackerman virtually plead for an alternative explanation--one that could be reconciled with their intellectual commitments of the last quarter century--but neither can glimpse what that explanation might be. (7) In this essay, I will offer one such alternative explanation.

The explanation I will not offer is that the justices in the majority sincerely believed what they wrote. After reflection, I agree with Dworkin, Ackerman, and many others that the decision simply does not pass the "red-face" test. In Section I, I will explain why the majority cannot be defended on the basis of the written opinion. In Section II, I will offer my alternative explanation for why the Court decided as it did. In Section III, I will assess whether the Court's action is tenable as a matter of political morality and legal process.

1. INDEFENSIBILITY OF THE WRITTEN OPINION IN BUSH V. GORE

   There are many weak points in the Court's decision, and they are sure to be exploited in great detail elsewhere in the law reviews. For present purposes, I wish to focus on three of them: (1) the majority's assertion that Bush would have suffered irreparable injury had the stay been denied; (2) the majority's insistence that any further recount would violate Florida law; and (3) the concurrence's failure to follow the Court's usual practice of deferring to a state supreme court's interpretation of state law.

   1. Irreparable Injury

      In his concurrence regarding the issuance of the stay, Justice Antonin Scalia stated, "The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election." (8) In other words, Justice Scalia believed some of the votes being counted were not legal votes, and if Al Gore were to have appeared to pull ahead on the basis of such non-votes, it would have sparked a political firestorm.

      There are several problems with Justice Scalia's analysis. Let us leave to one side the fact that the Court has seldom, if ever, embraced a concept so ethereal as "legitimacy" when inquiring into legally cognizable interests. Recall that Justice Scalia has insisted on "concreteness" in harms when gauging standing to sue. (9) But even assuming for the sake of argument that "legitimacy" counts as irreparable harm, how could the Court have possibly thought that the harm done to Bush in denying a stay could outweigh the harm done to Gore in granting the stay? Whatever cloud illegal recounts might have cast on Bush's legitimacy would more than likely have been blown away by revelations of the precise illegalities in the recounts. The antidote to falsehoods is not prior restraint, but truth. On the other hand, had the Court ruled on the merits that the Florida recounts were legal, the stay would have prevented Gore from any chance at winning the election. After all, the Court ruled that Florida law authorized no recounts after December 12, which is exactly when the Court issued its decision on the merits.

   2. Illegality of Further Recounts

      The Court held that the Florida legislature had intended to take advantage of the December 12 deadline set forth in federal law, (10) and, therefore, that any recounts after that date would be unauthorized. The Court here purported to rely on the Florida Supreme Court's interpretation of state election law.

      Again, let us lay aside the most obvious criticism, which is that the Court did not give a fig for the Florida Supreme Court's interpretation of anything in this case. The critical fact here is that the Florida Supreme Court had never passed on the precise question of whether recounts after December 12 would violate the spirit or letter of the Florida electoral scheme as set forth by the legislature. If the United States Supreme Court had sincerely been interested in the Florida Supreme Court's view of the matter, surely it would have remanded the question to that court, leaving plenty of time for a new recount under uniform objective standards, should the Florida Supreme Court have found that state law authorized such a recount after December 12. The only reasonable conclusion is that the majority was uninterested in the Florida Supreme Court's view of the law and simply wanted to stop the recounts once and for all.

   3. Comity and Federalism

      As the Chief Justice's concurrence acknowledged, the Court normally defers to state supreme court interpretations of state law. (11) He explained that this was an exception because Article II specifically grants state legislatures the power to determine the manner in which electors are to be selected--one of the very few places in the Constitution that gives power directly to state legislatures. (12) His concurrence gave no other, nor any further, explanation.

      This makes little sense. As Justice Kennedy pointed out during oral argument, the Framers could not possibly have meant that state legislatures were completely unmoored from state courts in determining the manner of selecting electors. State legislatures have always used state courts as interpretive adjuncts because, as...