Election 2000

George Bush won. But at what cost to the law?

Mike Godwin & Richard Epstein from the March 2001 issue

(Page 2 of 2)

The fits-and-starts of the Florida recount and contest procedure presented two lines of attack. The five conservative justices (Rehnquist, O'Connor, Scalia, Kennedy, and Thomas) invoked what can only be described as the broadest equal protection test known to man, for which they have been skewered by an enraged liberal press. Doctrinally, these critics have a real point. Normally, it is critical to know just what class of persons is disadvantaged by unequal treatment. That question can be answered with tolerable certainty in the "one-man/one-vote" cases decided in the 1960s. In those cases, residents of urban counties had a tiny say in state governance compared to their country cousins. But in the Gore/Bush bash, it is odd to lump all undercounted voters, whoever they might be, into one protected class, especially since any Bush undervoters were quite happy to see their votes uncounted so long as the Gore undervoters were equally ignored.

Worse still, this weird equal protection theory should not have ended the case. Rather, it cried out for the remand sought by Justices Souter and Breyer so that the Florida Supreme Court could establish a uniform standard of its choosing, and thus throw the election to Gore by declaring all dimples equal and valid. So the majority of the U.S. Supreme Court deftly cut off that possibility by noting that, under Florida law as interpreted by no less than the Florida Supreme Court, the overriding intention of the Florida legislature was to choose a slate of electors before the December 12, 2000, date (after which the slate could be challenged in Congress). The real decision was 5 to 4, not 7 to 2 as some conservatives have claimed.

The conservative core (Rehnquist, Scalia, and Thomas) went one step further by invoking Article II of the Constitution, which governs executive power. That article provides that the electors in each state shall be chosen "in such Manner as the Legislature thereof may direct." Florida's law calls for a popular vote under a complex election code that Florida courts interpret. This novel constitutional claim does not necessarily turn on bad faith conduct by the four Florida judges, but rather it becomes necessary to show at least that their decision deviated so far from the statute as to constitute new law of judicial origin. Take this line, as the conservative core did,and the judicial process ends with Katherine Harris' certification of George Bush.

Can that extreme claim be defended? In a low-stakes contest no one would bother to cast aspersions on the majority of the Florida Supreme Court. In this high-stakes case, aspersion looks well-grounded, if it matters, given how the Florida Supreme Court took over and continued the recount started by the canvassing boards. The Florida court created a new scheme for judging elections that can be referred back to the original statute solely by fanciful interpretative footwork. But for the U.S. Supreme Court majority, the operative principle may well have been only this: One bad turn deserved another. And thus the 5-4 majority ran out the electoral clock by overriding a 4-3 Florida majority.

For the public, this struggle was no doubt like a football game that went down to the wire but did not make it to overtime. The spectacle is over, and we can all move on. But academics and politicians have longer memories that lead to endless postmortems. Hyperbolic politicians will seize the platform to denounce the outcome. Key black leaders and liberal commentators have already mindlessly denounced Bush v. Gore as another Dred Scott decision, without acknowledging just how ugly a situation Dred Scott created.

This overblown rhetoric will die down with the next political flap. Still, liberal legal academics will linger on to rub conservative faces in the mire of their newfound activism. But they will have a practical objective, which is to give the next open U.S. Supreme Court seat to a political moderate. In the courts, ambitious lawyers will find constitutional meaning in administrative flip-flops until the Supreme Court states that this equal protection dog barked only once; constitutional litigation will quickly return to normal.

What remains is the uneasy aftertasteof this big decision. But ultimately that will prove more congenial to sober minds than would the alternative of an indefinite and prolonged struggle lasting into the next year. Remember that when two animals fight to the death, sometimes both die of their wounds. Here at least the Republic marches on, chastened, weary, and wiser. It was far from pretty. But it could have turned out far uglier than it did.