The Meaning of Bush v. Gore

0 Comments | Insight on the News, Jan 8, 2001 | by David Wagner

The Supreme Court decision that put an end to the 2000 presidential election consists of three parts: opinions by the court, by a majority on the court and the chief justice.

Suppose you're the Supreme Court, and say you've got a case in front of you that will, in effect, decide who will be president of the United States. Suppose further that a majority of your court has decided that the state supreme court got it wrong and that the applicable law favors the claims of the Republican candidate. How do you write the opinion?

Do you make it narrow, short on criticism of the state-court decision and long on classic U.S. Supreme Court precedents generally applauded by liberal Democrats? Or do you make it broad and bold, defending your court's intervention in a state-court matter and slicing open for public inspection the weaknesses of the state court's decision?

Evidently U.S. Supreme Court Justices Sandra Day O'Connor and Anthony Kennedy favor the former approach, while Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas lean to the latter. As there was nothing in the narrower, more timid opinion that the advocates of the bolder opinion expressly disagreed with, they signed onto it, thus making it the official opinion of the court. But the Rehnquist-Scalia-Thomas bloc also wanted its say, so it issued a concurring opinion.

The more moderate opinion was issued per curiam, meaning "by the court." Of course, all Supreme Court opinions that have the assent of a majority of the justices are opinions of the court. But usually one justice is named as the author of the opinion; when the court speaks per curiam, no single justice is named as the author.

The reason for occasionally going this route is to claim the high ground that comes from speaking as a group of justices. Politically sensitive cases are in particular need of this high ground, which is why both of the Supreme Court opinions issued in the Bush/Gore election case were issued per curiam, even though one was unanimous and the other was 5-4.

As reporters scrambled Tuesday night, Dec. 12, to understand the technical legal terms and still be the first to report the news, they made some amusing mistakes. Some, evidently going right for the final paragraph of the opinion to try to catch the bottom line, breathlessly announced that the court had remanded the case to the Florida Supreme Court. A remand! It's going back to the Florida court! Gore's case lives on! The Long Count continues!

But by the end of the first hour after the release of the opinion, cooler heads had read, if not the whole opinion, then at least the whole of the last paragraph. They had seen that the U.S. Supreme Court actually "reversed" the Florida Supreme Court's judgment and "remanded" the case to that court only "for further proceedings not inconsistent with this opinion." Message: Gore's toast.

But Gore-sympathizing reporters were not the only blunderers. Throughout the next day, conservative talk-show hosts repeated that the decision really was 7-2. This is a mistake. Count the opinions that are labeled as dissents by the justices who wrote them, and that reject the court's key decision to reverse the judgment of the Florida Supreme Court. There are four of them, not two.

The reason for the 7-2 nonfact is that, as the Rehnquist concurrence points out, seven of the court's nine justices agreed that Florida's uneven and inconsistent recount procedures may violate the equal-protection clause of the 14th Amendment. (Justices Souter and Breyer thought so; Justices Stevens and Ginsburg did not.)

But to agree that an equal protection may have been in the offing is not to agree on the crucial issue of the remedy. Bush was seeking a permanent halt to the uneven and inconsistent recounts; five members of the U.S. Supreme Court, not seven, agreed that a halt was the appropriate remedy. Four did not, albeit for different reasons. (Justices Souter and Breyer, who agreed that the equal-protection argument had some validity, thought the problem could be cured by allowing the Florida Supreme Court to be the ultimate arbiter of the recount process.)

Much has been made about the "role-reversal" aspect of this decision -- or, rather, of one side of it. The high court's conservatives, it is said, usually are defenders of states' rights and opponents of judicial correction of the political process. Little, if anything, was said about the other side of this role reversal: Justice Ruth Bader Ginsburg and the other high-court liberals discovering judicial restraint and scolding the majority for overturning a state-court judgment. Dismissing the majority's concerns about how the equal-protection clause applies to this case, Ginsburg reminds the majority that "we live in an imperfect world." After all, this isn't Virginia Military Institute, where, according to Ginsburg, the equal-protection clause tolerated no imperfection.

But in fact, neither side was as inconsistent as they may have seemed. This case should be looked at not along the dichotomy of state-versus-federal, but of legislature-versus-judiciary. The dissents obscured this point by repeatedly referring to the handiwork of the Florida Supreme Court as "state law," overlooking the fact that the work product of a state legislature, more than that of a state court, deserves to be called state law. Lawmaking is part of the very definition of a legislature.