Why the Supreme Court should not have decided the presidential election of 2000.

• Author: Choper, Jesse H.

Bush v. Gore, (1) the Supreme Court's final decision and last exercise of its immense power of judicial review in the 20th century, will be one of its most discussed rulings for many years to come (although rarely cited--I predict--for its specific substantive holding). (2) The Justices' assumption of governmental authority reached a new dimension on December 12, 2000, when by a 5-4 margin, the Court affirmed its decision of three days earlier to halt Florida's recount of votes for the presidential election, effectively deciding the contest in favor of Republican candidate George W. Bush. In my view, the Court's intervention in the election was ill advised, not because of the merits of the Court's decision, which has been the dominant subject of both scholarly and journalistic commentary on the ruling, but rather because the proper role of judicial review in our system of government dictates the conclusion that the Court's adjudication was both unnecessary and unwise, creating a widely-based popular perception of partisanship by the Judicial Branch that carries the threat of diminishing the public's trust and confidence in the Justices and endangering the Court's institutional standing and overall effectiveness.

I

When should the Supreme Court exercise its extraordinary power of judicial review, which is seemingly the most anti-majoritarian of all exercises of national authority, in direct conflict with our fundamental principles of majoritarian democracy. (3) I believe that the Justices should only intervene to secure those constitutional values, mainly found in those constitutional clauses that establish individual rights, that cannot be otherwise adequately protected in the political process. In contrast to disputes concerning federalism (the allocation of power between the national government and the states) (4) and the separation of powers between Congress and the President, (5) where the contestants are forcefully represented in the national political process, the interests of those such as racial, ethnic, and religious minorities, political dissidents and persons accused of crime are particularly susceptible to majoritarian indifference or abuse. (6) By ordinarily limiting judicial review to this category of constitutional provisions, the Court reduces the discord between judicial review and majoritarian democracy and enhances its ability to render enforceable constitutional decisions when its participation is critically needed. (7) While the Court should not avoid matters based on their controversial nature (and many individual rights cases strongly fit this description), neither should it needlessly dissipate its limited institutional support or "capital."

II

Although, as will be discussed below, the issues addressed by the Justices in Bush v. Gore plainly presented two federal questions, judicial review was not required to secure individual constitutional rights and, more importantly, the central question in the case should have been resolved through the political rather than the judicial process.

At its core, the case confronted the Court with questions of state electoral law--whether the Florida Supreme Court's interpretation of the state's election statutes "impermissibly distorted" the statutory scheme "beyond what a fair reading required" so as to be judicial lawmaking, and thus contrary to Art. I, [section] 2 of the federal Constitution. (8) The one notable exception to this non-individual rights type issue--and the basis on which seven members of the Court agreed to reverse the Florida Supreme Court--was the contention that the discretionary procedures being used in the judicially ordered statewide recount of the undervote in Florida, between counties and within certain counties themselves, in order to determine the "clear intent" of the voter, violated the fundamental right to vote on an equal basis secured by the Equal Protection Clause of the Fourteenth Amendment. While judicial review is ordinarily a necessary safeguard against equal protection violations by the political branches of government, (9) the nature of the equal protection violation alleged in Bush v. Gore did not implicate the typical concern for minority rights. The varying recount standards were neither intended, nor would appear in fact, to be skewed to produce a disparate impact in respect to the votes of any identifiable group, such as a racial minority or a political party. Rather, the choice of standard would seem to promise a random or unpredictable (rather than systematic) effect on whose votes would be deemed valid. (10) Given this indeterminate result, there is reason to be willing to defer to the local political entities that selected the recount methods, (11) especially in light of the powerful considerations against the Court's intervention, to be discussed below. (12)

Further, from an operational standpoint, the process that was in place for determining the unresolved presidential election was working adequately--at least to the extent that litigation is an acceptable method of dispute resolution. Although a whirlwind sequence of legal activity followed the election and automatic recount, (13) Vice President Gore exercised his challenges pursuant to Florida election law in the Florida courts. (14) Moreover, nothing prevented those courts from considering Governor Bush's counter arguments based on federal law. (15) While the presidential candidates battled in the courts, the nation, though anxious--or, at least, impatient--to have a final result, remained stable. Despite some media forecasts and observations by various commentators of a "constitutional crisis," (16) no tangible indications of this seemed to appear. President Clinton still occupied the White House with undiminished authority to conduct the affairs of the nation, even to respond to such tragic emergencies as occurred on December 7 or September 11. Plainly, there was neither the threat nor the reality of any social unrest, violence, or formal military intervention. (17) The economy remained stable. (18) There was not even any serious name-calling by the competing camps, at least not beyond the usual election season fare. Rather, the contestants proceeded in the American way--they sued! And the American public was afforded an unusual opportunity to observe the path of the rule of law in action. (19)

The real difficulty was not the dispute resolution process. Rather, the problem was the unusual circumstance that there was no practically ascertainable winner of the presidential election of 2000, which essentially ended in a tie. If, as Professor Charles Fried explains, there was no way to design a statistically valid recount because "a difference of 0.5 percent in an election in which a hundred million votes were cast--at various times, under diverse circumstances, by a wide variety of means--exceeds our present capacity for accurate tabulation," (20) then that was multitudinously true in Florida where no count or recount ever reached a difference as large as a thousand votes out of six million cast (.0167%). (21) It may well be that the fairest solution (clearly the quickest and least costly) would have been to flip a coin. (22) Such means, however, strike many citizens as unacceptable because of our national sense of propriety and admirable belief in the search for "truth," both of which might affect the coin-toss winner's mantle of legitimacy to govern.

Finally, from the perspective of both public policy and constitutional doctrine, Bush v. Gore presented a "political" question. (23) On its face, the ultimate issue in Bush v. Gore--who shall be elected president of the United States--is the most "political" of all matters in our nation. As a matter of policy, our governmental system erects a formidable presumption that political issues should be resolved by political means, so as not to embroil the Court in partisan political maneuverings beyond its institutional capacity and role. (24)

The issue in Bush v. Gore also qualifies as a "political question" under a more formal doctrinal analysis by which, pursuant to separation of powers principles, the Court defers to the political branches for final determination of certain constitutional issues. (25) The first, and seemingly most important, (26) of the four criteria that the Court considers in determining the existence of a political question--whether there is a "textually demonstrable constitutional commitment of the issue to a coordinate political department" (27)--strongly suggests that the core issue in Bush v. Gore was nonjusticiable. The Twelfth Amendment (which supplants provisions of Art. II, [section] 1 dealing with the Electoral College) expressly remits to the House of Representatives (plainly that organ of the national government originally intended to be most responsive to the will of the people) (28) the authority to choose the President if no candidate receives a majority of the electoral votes. (29) Furthermore, the Electoral Count Act, a set of federal statutes enacted after the Hayes-Tilden election (30) to implement Congress's task under the Twelfth Amendment to count the electoral vote, assigns to Congress the authority and responsibility to settle disputes remaining after a state has tried to resolve electoral contests through "judicial" (which Florida expressly chose to do) (31) or other means. Notably, neither the Constitution nor the federal statutes mention any role for the Supreme Court in this "adjudicative" process. (32)

While the Electoral Count Act is not free of certain ambiguities and possible constitutional problems, it is relevant to consider what would have likely happened if the Court had abstained. Presumably, the recount would have continued. Under the simplest scenario, if the Florida process would have shown Governor Bush to be the winner, the election saga would have ended. (33) Had the recount shown Vice President Gore to be the winner, the...