Two articles by Jeffrey Rosen, The New Republic's chief legal analyst, offer the most clearcut expression of liberal outrage with the Bush v. Gore decision.

Judge Not

by Jeffrey Rosen

Post date 11.30.00 | Issue date 12.11.00

Almost as soon as the United States Supreme Court agreed to hear Bush v. Palm Beach, the questions the justices framed already seemed tangential. The Court had intervened at a moment of great anxiety for George W. Bush. The Florida Supreme Court had just ordered the Republican secretary of state, Katherine Harris, to accept hand recounts--and it appeared that those recounts might allow Al Gore to take the lead. This could have ignited a conflict between the Florida Supreme Court and Harris, who insisted she was required by law not to consider hand recounts after the original deadline for receiving them. The Bush campaign appealed to the U.S. Supreme Court, asking it to overturn the Florida Supreme Court and to invalidate the hand counts. But justices are no better than journalists at keeping up with this fast-moving story, and by the time the briefs were filed the case already appeared to be beside the point. The manual recounts the Bush campaign so feared had failed to produce a Gore victory. While Gore has continued to fight by contesting the election in the Florida courts, his suits can proceed regardless of what the U.S. Supreme Court says in Bush v. Palm Beach.

So the Court has very little to gain by intervening in this case. But it has a great deal to lose. The central question right now is the potential conflict between the Florida courts and the Florida legislature about who gets to appoint electors. This conflict will arise if Gore wins his contest suit and the Florida Supreme Court awards him the state's electoral votes, while the Florida legislature simultaneously appoints its own set of electors for Bush. The federal law that tells Congress how to resolve this dispute is the same one at issue in Bush v. Palm Beach. In theory, therefore, the Court could use the case to clarify the meaning of that law.

It could. But it shouldn't. This is a moment of peril for the Supreme Court. If it presumes to tell Congress how to resolve the electoral crisis, the Court will unmask itself as no less ideologically divided than every other institution this battle has touched. The justices need to escape the trap they have set for themselves, and they can do so without losing face: by recognizing that disputes about presidential electors are a political question that the Constitution assigns to Congress rather than the courts.

This would mean rejecting Bush's central claim. But that's OK, because Bush's claim is extremely weak. He argues that the U.S. Supreme Court should vacate the Florida Supreme Court decision because it fails to comply with the Electoral Count Act of 1887. Section Five of that law says that if any state has passed laws before Election Day providing for a "final determination of any controversy or contest" concerning the appointment of electors by "judicial or other methods or proceedings," those proceedings shall be binding on Congress when it counts electoral votes, as long as the "final determination" occurs by December 12.

The Electoral Count Act was designed to avoid a reprise of the Hayes-Tilden debacle of 1876, when the state of Florida submitted two slates of electors--one for Hayes, certified by the Republican canvassing board, and one for Tilden, certified by the Democratic legislature. Congress embarrassed itself when it appointed a bipartisan commission of senators, representatives, and Supreme Court justices to choose among the competing slates, after which both Houses split over whether or not to accept the commission's ideologically divided report. To ensure that Congress wouldn't face this dilemma again, the Electoral Count Act tried to give states an incentive to enact laws for resolving election controversies before the election. Florida did just that when it passed a series of laws regulating presidential elections and gave the state's courts the power to interpret them.

Bush argues that the Florida Supreme Court's decision shouldn't be respected, because the court changed Florida election law rather than interpreting it. I happen to think the Florida Supreme Court went too far in changing the counting standards and announcing a new deadline for Harris to meet, rather than ordering her to accept the results of manual recounts and letting her set a new deadline herself. But even people who disagree with aspects of the court's decision should reject Bush's claim that the court was legislating rather than interpreting. Attempting to reconcile legal ambiguities is what courts do all the time, and the Supreme Court has no business second-guessing a state court's interpretation of its own law merely because the interpretation is open to question.

Even assuming the Florida Supreme Court changed Florida law, however, the Florida judges can't have violated the Electoral Count Act, because the Electoral Count Act doesn't require the Florida Supreme Court to do anything at all. It is directed at the U.S. Congress, not at the Florida courts. Specifically, it tells Congress which votes to count in the event there are competing slates of electors; it doesn't authorize the U.S. Supreme Court to resolve controversies that the state courts and state legislature are trying to resolve on their own. For this reason, Gore argues convincingly, the U.S. Supreme Court can't order any remedy even if it thinks the Florida Supreme Court changed the law. By dismissing the case as a political question, the Court could acknowledge that it has no authority to resolve the dispute.

What if we get a reprise of the Hayes-Tilden fiasco and two competing slates of electors emerge before December 12--one for Bush, certified by the Florida legislature, and the other for Gore, certified by the Florida Supreme Court? Then we'd be back to the ambiguities in the Electoral Count Act. Section Two of the act declares that "[w]henever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct." Since Florida failed to choose electors on November 7, the Florida legislature now claims that it has the power to appoint Bush electors whenever it likes and that Congress has to respect its choice. But this is hard to reconcile with Section Five of the Electoral Count Act, which says state judicial proceedings "shall be conclusive" in the electoral count, as long as they are finalized by December 12.

On the merits, there's a strong argument that if dueling slates emerge before December 12, Congress is required by Section Five to recognize the slate certified by the Florida courts rather than the one certified by the legislature. But, in practice, this mandate seems unenforceable by the Supreme Court, since Congress would have to choose the wrong slate before it could be sued for violating the Electoral Count Act. This is yet another reason for the Supreme Court to emphasize that the ultimate meaning of the Electoral Count Act is a political question assigned to Congress rather than the courts.

By making clear that it is not willing to spare Congress the need to make this choice, the Supreme Court could increase its legitimacy by refusing to exercise its power, much as it did in Marbury v. Madison, when it held that Congress acted unconstitutionally in giving the Court power to order Secretary of State James Madison to deliver a commission. Last week, when they intervened in this political dispute, the justices made a dangerous mistake; they now risk embarrassing themselves and the country. By getting out of the controversy as quickly as possible, they can preserve their own carefully cultivated aura of neutrality at a time when the other branches of national government are sadly abandoning their own.

JEFFREY ROSEN is legal affairs editor of TNR.


by Jeffrey Rosen

Post date 12.14.00 | Issue date 12.25.00


On Monday, when the Supreme Court heard arguments in Bush v. Gore, there was a sense in the courtroom that far more than the election was at stake. I ran into two of the most astute and fair-minded writers about the Court, who have spent years defending the institution against cynics who insist the justices are motivated by partisanship rather than reason. Both were visibly shaken by the Court's emergency stay of the manual recount in Florida; they felt naive and betrayed by what appeared to be a naked act of political will. Surely, we agreed, the five conservatives would step back from the abyss.

They didn't. Instead, they played us all for dupes once more. And, by not even bothering to cloak their willfulness in legal arguments intelligible to people of good faith who do not share their views, these four vain men and one vain woman have not only cast a cloud over the presidency of George W. Bush. They have, far more importantly, made it impossible for citizens of the United States to sustain any kind of faith in the rule of law as something larger than the self-interested political preferences of William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O'Connor.

This faith in law as something more than politics has had powerful opponents throughout the twentieth century. For everyone from legal realists and critical race theorists to contemporary pragmatists, it has long been fashionable to insist that the reasons judges give are mere fig leaves for their ideological commitments. Nevertheless, since its founding, The New Republic has resisted this cynical claim. From Learned Hand and Felix Frankfurter to Alexander Bickel, the editors of this magazine have insisted that, precisely because legal arguments are so malleable, judges must exercise radical self-restraint. They should refuse to second-guess the decisions of political actors, except in cases where constitutional arguments for judicial intervention are so powerful that people of different political persuasions can readily accept them. This magazine has long argued that the legitimacy of the judiciary is imperiled whenever judges plunge recklessly into the political thicket. And this has led editors of different political persuasions to oppose the judicial invalidation of laws we disagreed with as well as those we supported--from Progressive-era labor laws to the New Deal administrative state to laws restricting abortion and permitting affirmative action. In all these cases, we argued that judges should stay their hand. Our views about judicial abstinence have been those of Oliver Wendell Holmes: "If my fellow citizens want to go to hell, I will help them," he said. "It's my job." But in Bush v. Gore, as in Dred Scott and Roe v. Wade, the justices perceived their job differently. They foolishly tried to save the country from what they perceived to be a crisis of legitimacy. And they sent themselves to hell in the process.

The unsigned per curiam opinion in Bush v. Gore is a shabby piece of work. Although the justices who handed the election to Bush--O'Connor and Kennedy--were afraid to sign their names, the opinion unmasks them more nakedly than any TV camera ever could. To understand the weakness of the conservatives' constitutional argument, you need only restate it: Its various strands collapse on themselves. And, because their argument is tailor-made for this occasion, the conservatives can point to no cases that directly support it. As Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer wrote in their joint dissent, this "can only lend credence to the most cynical appraisal of the work of judges throughout the land."

What, precisely, is the conservatives' theory? "Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another," they declare. The citation is Harper v. Virginia Board of Elections, the case that invalidated the poll tax in 1966 on the grounds that it invidiously discriminated against the poor. But there is no claim here that Florida's recount law, shared by 32 other states, discriminates against the poor. Indeed, Florida argued that its scheme is necessary to avoid discrimination against the poor, because a uniform system of recounting that treated the punch-card ballots used in poor neighborhoods the same as the optically scanned ballots used in rich ones would systematically undercount the votes of poorer voters. By preventing states from correcting the counting errors that result from different voting technologies, the conservatives have precipitated a violation of equal treatment far larger than the one they claim to avoid.

"The fact finder confronts a thing, not a person," write the conservatives in a clumsy and perverse inversion of the famous line from Reynolds v. Sims, the great malapportionment case, which noted that "legislators represent people, not trees." But things do not have constitutional rights; people have constitutional rights. It is absurd to claim that the "right" of each ballot to be examined in precisely the same manner as every other ballot defeats the right of each individual to have his or her vote counted as accurately as possible. Were this theory taken seriously, many elections over the past 200 years would have violated the equal protection clause, because they were conducted using hand counts with different standards. The effect of the majority's whimsical theory is to fan the suspicion, which now looks like a probability, that the loser of both the popular vote and the electoral vote has just become president of the United States. At least the ballots can sleep peacefully.

The conservatives can rustle up only two cases that purportedly support their theory that Florida's recount scheme gave "arbitrary and disparate treatment to voters in its different counties." (Both were written in the 1960s by liberal activist Justice William Douglas, which must have given the conservatives a private chuckle.) The first case, Gray v. Sanders, held that Georgia's county-based scheme of assigning votes in the Democratic U.S. senatorial primary discriminated against voters in urban counties, whose votes were worth less than those in rural counties. The same logic, applied to this case, would hold that the Florida legislature could not adopt a county-based scheme for assigning votes in presidential elections. But this conclusion is completely inconsistent with the conservatives' earlier argument, the one that emboldened them to stop the manual recount in the first place: that Article 2 of the Constitution allows the Florida legislature to structure its presidential electing system however it chooses. The second case, Moore v. Ogilvie, held that applying "a rigid, arbitrary formula to sparsely settled counties and populous counties alike ... discriminate[d] against the residents of the populous counties of the State in favor of rural sections." That case, in other words, does not support the conservatives' claim that ballots in rural and urban counties must be counted and recounted in precisely the same manner. It suggests the opposite.

The reason the conservatives can find not a single precedent to support their equal protection theory is because the theory is made up for this case only. But the damage is not so easily limited. The Supreme Court has called into question not only the manual-recount procedure adopted by the legislature of Florida but our entire decentralized system of voting--in which different counties use different technologies to count different ballots designed differently and cast at different hours of the day. In addition to throwing the presidential election and destroying the legitimacy of the Supreme Court, Bush v. Gore will spawn an explosion of federal lawsuits after every close election, lawsuits arguing that different counties used different ballot designs and voting systems and counted the ballots in different ways.

In this way, Bush v. Gore is a ludicrous expansion of cases like Shaw v. Reno, in which the same five-member conservative majority, led by the addled and uncertain Sandra Day O'Connor, held that federal courts must second-guess each legislative exercise in state and federal redistricting to decide whether or not race was the "predominant purpose" in drawing district lines. The idea that this usurpation of our democratic electoral system by the federal judiciary has been precipitated by a group of conservatives who once posed as advocates of judicial restraint and champions of state legislatures can only be met with what the legal scholar Charles Black called the sovereign prerogative of philosophers: laughter.


But the majority asks us not to worry about the implications of its new constitutional violation. "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities," the justices write. It certainly does. But a mobilized nation is now far less likely to tug its collective forelock and wait for the preening O'Connor and Kennedy to sort out the confusion on our behalf. We've had quite enough of judicial saviors.

In a poignant attempt to split the difference between the two camps, Justices Breyer and David Souter tried to prevent the Court from destroying itself. They agreed that applying different counting standards to identical ballots in the same county might violate the equal protection clause, and they proposed sending the ballots back to Florida and letting its courts apply a uniform counting standard. But their attempt at statesmanship was crudely rejected by O'Connor and Kennedy, which left Breyer and Souter with their hands extended, played for dupes like everyone else who naively believed the conservatives were operating in good faith. "Because the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U.S.C. Sec. 5," O'Connor and Kennedy wrote in the tortuous punch line of their opinion, "Justice Breyer's proposed remedy--remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest until December 18--contemplates action in violation of the Florida election code." With this feint at deference to the state court at precisely the moment there was nothing left to defer to, the jig was up. O'Connor and Kennedy had converted the Florida court's passing reference to the federal law telling Congress which electoral slate to count in the event that a controversy was resolved before December 12 into a barrier, now mysteriously embedded in state law, that prevented the Florida Supreme Court from completing manual recounts after December 12. And for the Court to announce this rule at ten o'clock at night on December 12, after having stopped the count two precious days earlier, only added to the gallows humor.

It will be impossible to look at O'Connor, Kennedy, Scalia, Rehnquist, and Thomas in the same light again, much as it was impossible to look at President Clinton in the same light after seeing him exposed in the Starr Report. But this time the self-exposure is also a little bracing. Conservatives have lectured us for more than 30 years about the activism of the Warren and Burger Courts. Those tinny and hypocritical lectures are now, thankfully, over. By its action on December 12, the Supreme Court has changed the terms of constitutional discourse for years to come. Just as Roe v. Wade galvanized conservatives a generation ago to rise up against judicial activism, so Bush v. Gore will now galvanize liberals and moderates for the next generation. But, unlike the conservative opponents of Roe, liberals must not descend to the partisanship of the current justices; they must transcend it. The appropriate response to Bush v. Gore is not to appoint lawless liberal judges who will use the courts as recklessly as the conservatives did to impose their sectarian preferences on an unwilling nation. The appropriate response, instead, is to appoint genuinely restrained judges, in the model of Ginsburg and Breyer, who will use their power cautiously, if at all, and will dismantle the federal judiciary's imperious usurpation of American democracy. Those of us who have consistently, if perhaps naively, opposed liberal and conservative judicial activism throughout the years can now point to Roe and Bush as two sides of the same coin. (How fitting that Bush is now a dubious president and a dubious precedent.)

In his dissent in Casey v. Planned Parenthood, the abortion case that reaffirmed Roe in 1992, Scalia recalled the portrait of Chief Justice Taney that hangs in the Harvard Law School library. Taney had led a bitterly divided Supreme Court to strike down the Missouri Compromise; but, instead of saving the nation from its partisan divisions, his reckless intervention precipitated the Civil War:

There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the luster of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believing that he had that case--its already apparent consequences for the Court and its soon-to-be-played-out consequences for the Nation--burning on his mind. I expect that two years earlier he, too, had thought himself "call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution." It is no more realistic for us in this litigation, than it was for him in that, to think that an issue of the sort they both involved ... can be "speedily and finally settled" by the Supreme Court.... Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

Who would have dreamed that in describing Taney's portrait Scalia imagined his own?