While we will probably never know who won the most votes in the 2000 presidential election, there can be no doubt about who was one of the big losers-- the Supreme Court of the United States as an institution. Although a majority of Americans appear to acknowledge that the decision in Bush v. Gore [1] was political, only those familiar with constitutional jurisprudence truly understand the degree to which the decision was both partisan and result orientated-- and a betrayal of the public trust. [2]
Appointed for life by the President with the advice and consent of the Senate, it was intended by the framers of the Constitution-- and largely true in practice-- that the Supreme Court would be above partisan politics and immune from the pressure of public opinion. Indeed, it is the appearance of impartiality combined with decision-making based upon the rule of law, on which the Court relies to insure acceptance of and obedience to its decisions. This has also helped the Court maintain a relatively high public approval rating, while approval of other governmental institutions has generally declined. The image and role of the Court as a neutral, detached arbiter is also a product of the limitations on the Court's jurisdiction imposed by the Constitution and jurisprudential rules derived from the Court's own decisions. The Court will only hear appeals from a state supreme court if a substantial federal question is involved. It generally will not venture into controversial areas of substantial import where it cannot obtain unanimity or a substantial majority - particularly where its jurisdiction to hear the case is in dispute. [3] It will not decide political questions. It is not the final arbiter of the meaning of state law (which is left for determination by state supreme courts). Indeed, primarily as a result of the foregoing limitations, combined with the fact that it has complete discretion on whether or not to hear a matter on appeal, of the 7,300 or so petitions for writ of certiorari filed with the Supreme Court last term (1999), the Court agreed to hear only 124 cases and wrote opinions in only 81. Accordingly, merely convincing the Court to hear a case is an extraordinary event.
Notwithstanding the constitutional and self-imposed limitations on its jurisdiction, the Supreme Court twice did something extraordinary in the 2000 presidential election dispute-- it accepted appeals and wrote decisions. Moreover, a majority of the Court agreed to do so in a case where constitutional scholars uniformly agree-- as did four vigorous dissenters on the Court-- there was no substantial federal question, but rather a dispute regarding the extent to and manner in which voter intent must be ascertained in a recount of votes under state law . In addition, not only did a majority of the Court accept jurisdiction where there did not appear to be any substantial federal question, but they did so knowing the Court was bitterly divided on a highly charged issue of national importance, where they could not reasonably hope to garner any more than a bare majority. Thus, the majority accepted the case knowing the Court's decision was not likely to carry the authoritative weight needed to command the confidence of a deeply divided nation on such a momentous dispute. [4] This was particularly true in this case where the Court's actions and decision were certain to be subjected to searching analysis and criticism.
Perhaps more disturbing, the majority accepted the case for decision knowing that, by their ruling, they would effectively be choosing the next President of the United States. The Supreme court has defined a "political question" not subject to judicial resolution to include situations where responsibility for determination of a dispute has been constitutionally committed to a coordinate branch of government; where there is a lack of judicially discoverable or manageable standards for resolving the dispute; where resolution of the dispute requires an initial policy determination of a kind inappropriate for judicial determination; or, where a decision by the Court would express lack of respect for coordinate branches of government. [5] The Constitution vests primary responsibility for choosing presidential electors with the states, and vests ultimate responsibility for counting the votes and determining a winner in the Congress. Both the State of Florida and the Congress have detailed procedures in place for resolving disputes over the selection of electors. In light of this, combined with the fact that the majority's decision turned on the purported lack of standards for hand counting votes and required the overruling of two Florida Supreme Court decisions, there can be no clearer example of a political question which the Court, by its own rules, is forbidden to decide. [6]
Moreover, the case is not disturbing merely because the Supreme Court violated its own jurisprudential rules in agreeing to hear the case, but also because of the unprecedented decision of the majority to render a ruling which effectively permitted them to select the person who would be nominating their colleagues and successors-- on a sharply divided Court. And it did so in a situation where the appearance, if not the reality, of judicial impropriety was obvious and overwhelming. The son of one of the justices voting in the majority was a partner in the law firm that argued the case for the Republican candidate petitioning the Court. The wife of another justice voting with the majority was or had been employed either directly or indirectly by the campaign organization of this same candidate. Federal law would appear to forbid the participation of these two justices under the circumstances, [7] keeping in mind that if either were recused, the decision would have gone the other way. Moreover, only the most naive could believe it was a coincidence that the five justices voting in the majority were all Republican appointees or that three of the five were either former Republican party activists or office holders. [8]
Not only does it appear that a majority of the Court agreed to accept a case for decision that it normally would not, but they rendered a decision, the substance of which was equally extraordinary. The majority essentially ruled that the "intent of the voter" standard, which is the law in Florida and more than thirty other states, is unconstitutional unless state law also provides a uniform standard for making such a determination-- something few, if any, states do. [9] This holding was a remarkable and substantial departure from existing precedent, which held that mistakes or irregularities in a state's electoral process were insufficient to rise to the level of an equal protection violation absent intentional, discriminatory conduct. [10] The majority also purported to instruct the Florida Supreme Court on the meaning of state law. The five justices in the majority who voted to do this are also the same five who almost uniformly rule in favor of states' rights and defer to state court interpretation of state law. [11] Moreover, based on the majority's interpretation of state law, they ruled there was insufficient time for a vote recount to proceed in any fashion, thereby eliminating the Florida Supreme Court from any further participation in the process, and thus guaranteeing the election of the Republican candidate as President. [12] However, as argued by dissenting members of the Court, the majority's conclusion that December 12 th was the absolute deadline under state law for resolving any electoral contests was not necessarily warranted by a careful reading of Florida Supreme Court decisions, and should have been left for determination by that court. [13] In any event, there can be no dispute that by their extraordinary actions in stopping the recount and waiting until December 12 th to render their decision, the majority guaranteed the result they obviously desired.
Furthermore, underscoring and confirming that their decision was result orientated, the majority cautioned that its new and expansive "equal protection' analysis should not be applied as precedent in other cases by stating that "[o]ur consideration is limited to the present circumstances." [14] But most importantly, what the majority insured by their decision was that the stature and prestige of the Supreme Court as an institution would be tarnished and diminished, perhaps irreparably. Indeed, the extent to which the reputation of the Supreme Court has been damaged cannot be overstated.
In light of the foregoing application and analysis of well-settled law and jurisprudential rules of the Court, the response to this article attempts to deflect criticism of the majority decision by attacking the decision of the Florida Supreme Court under review. [15] Unlike the majority's decision, the Florida Supreme Court's ruling was based on an interpretation of well- settled state law by a state supreme court, as opposed to a novel interpretation of the federal Equal Protection Clause by the Supreme Court of the United States. The "intent of the voter" standard upon which the Florida court relied had been the law in Florida for over 50 years [16] and, was the same or similar standard applied in a majority of states. [17] Contrary to the response article, the "intent of the voter" standard is a uniform rule, which neither the Florida Supreme Court, the Supreme Court of the United States, nor any state supreme court -- to the knowledge of this author -- had previously held to violate equal protection because of the lack of precision in interpretation or implementation. [18] Indeed, despite the popular notion that equal protection under the federal constitution means "equal," the mere lack of uniformity in the implementation or application of the law has never been held to violate equal protection absent, as stated previously, intentional discrimination. The majority's sudden preoccupation with total uniformity and "fundamental fairness" in the 2000 presidential election dispute should be contrasted with a recent decision by the same majority invalidating a state law prohibiting private organizations which qualify as "public accommodations" from discriminating on the basis of sexual orientation, [19] even though the Burger Court had previously upheld a similar state anti-discrimination law prohibiting such organizations from discriminating on the basis of gender.[20]
In addition to partisan and result orientated, one could add hypocritical to a description of the majority's decision. [21]
Despite the "spin" which the majority decision attempted to place on the lack of uniformity in the recount procedure, no objective person who viewed the live broadcasts of the recounts in Palm Beach and Broward Counties could question either the integrity of the process or the individuals involved. The process was public; observers for both parties were present; there was opportunity to object to any vote determination; and, there was an appeal process in each county to rule on any objections. [22] Moreover, given a rate of error of one (1%) percent in the punch card machine counts conceded by the machine manufacturer, as noted by the dissent, even conceding its flaws, the recount process ordered by the Florida Supreme Court was unlikely to "yield a result any less precise than the certification which preceded [the] recount." [23]
Finally, on at least three (3) different occasions in the response article, the decision in Bush v. Gore is described as a 7 - 2 vote. Despite the "spin" the majority attempted to place on its ruling by referencing such a vote, nothing could be further from the truth. Although it is undisputed that both Justices Souter and Breyer expressed equal protection concerns due to the lack of uniform rules for implementing the intent of the voter standard, both unequivocally stated that the issue should have been left for resolution by the Florida Supreme Court and that there was no substantial federal question justifying the Court's intervention. In a vigorous dissenting opinion, Justice Breyer describes the Court's intervention in the 2000 electoral dispute as "a wound that may harm not just the Court, but the Nation." [24] Justice Breyer further opined that it was "wrong" for the Court to have granted a stay and "wrong" to have decided the case. [25] Although more restrained in his language, Justice Souter was critical of the majority's grant of a stay and calls the majority opinion "another erroneous decision." [26] It would thus appear that neither of these dissenting justices were on the same page as the majority, let alone the same vote column. Indeed, it has recently been reported in USA Today that the majority's decision has left "lingering bitterness" between the majority and minority justices which is apparently impairing the functioning of the Court. [27]
There are some who may essentially agree with the foregoing analysis, but say the Supreme Court acted in an extraordinary fashionunder extraordinary circumstances in order to resolve a matter which could have lead to a constitutional crisis, because of the possibility that two slates of electors could have been chosen in Florida-- one by the state legislature and one by the popular vote. The response to this is simply that there is a constitutional process in place to deal with such a situation, granting authority to resolve such a dispute with a political branch of the federal government-- the Congress. [28] Whatever the result of that process, if the American people were dissatisfied, they would at least have had the option to "vote the bums out." Unfortunately, this is not an option with the Supreme Court. Indeed, the only crisis of constitutional proportions was created when the majority opted to render a decision, which permitted the judicial branch of the federal government to effectively select the chief of the executive branch-- a dangerous and unprecedented breach of the separation of powers doctrine. Detractors may also say that whether or not there is any validity to the foregoing criticism, this is a time for the nation to heal and that this article is therefore divisive and inappropriate. The response to this is that public officials-- particularly unelected ones who have the prestige which comes with a position on the Supreme Court-- should not be permitted to cloak partisan self-interest under the mantel of a purported impartial decision made under the rule of law. This is so because the only hope for deterring similar conduct in the future is to expose and condemn its existence. Moreover, it is often more urgent to speak out when what must be said is not popular or politically correct. But, most of all, what has been said here is for the benefit of the real losers of the 2000 presidential election-- the American people.
[1] Bush v. Gore , 121 S.Ct. 525 (2000)
[2] Scholarly criticism of the decision abounds. The following passage from a recent article in USA Today is illustrative:A refrain that has become popular among dissatisfied law professors is," What will I tell my students?" Yale University Law professor Akhil Amar answered that in an opinion piece in the Los Angeles Times: "It will be my painful duty to say, 'Put not your trust in judges.'" Michael Greve of the American Enterprise Institute wrote in the Conservative The Weekly Standard, "It would be silly to deny that partisan considerations influenced the justices' rulings."
Joan Biskupic, Election Still Splits Court , USA Today, Jan. 22, 2001, at 2A.
[3] See , e.g ., 121 S.Ct at 557 (Breyer, J., dissenting) (expressing concern that "appearance of a split decision runs the risk of undermining the public's confidence in the Court itself").
[4] See, supra , note 3.
[5] Baker v. Carr , 369 U.S. 186, 217 (1962); see also , Bickel, The Least Dangerous Branch 184 (1962) (opining that cases calling for judicial restraint are marked by "strangeness of the issue," its "sheer momentousness, which tends to unbalance judicial judgment", and "the inner vulnerability, the self-doubt of an institution which is electorally irresponsible and has no earth to draw strength from").
[6] 121 S.Ct. at 555-558 (Breyer, J., dissenting) (discussing political question issue and need for judicial restraint).
[7] 28 U.S.C. §455 (requiring disqualification of federal judge "in any proceeding in which his impartiality might reasonably be questioned").
[8] See , supra , passage quoted in note 2.
[9] 121 S.Ct. at 540 n. 2 (Stevens, J., dissenting) (citing state statutes employing "intent of voter" or similar standard).
[10] 121 S.Ct. 540-541 (Stevens, J., dissenting). The four cases cited in the majority's per curiam opinion in support of its finding of an equal protection violation all involved intentional, invidious discrimination. Moore v. Ogilvie , 394 U.S. 814 (1969); Harper v. Virginia Bd. of Elections , 383 U.S. 663 (1966); Reynolds v. Sims , 377 U.S. 533 (1964); Gray v. Sanders , 372 U.S. 368 (1963). Moreover, none of these cases involved non-systemic lack of uniformity or mere irregularities in the vote counting process.
[11] 121 S.Ct. at 549-550 (Ginsburg, J., dissenting) ("Were the other members of this Court as mindful as they generally are of our system of dual sovereignty, they would affirm the judgment of the Florida Supreme Court.").
[12] 121 S.Ct. at 533.
[13] 121 S.Ct. at 550 (Ginsburg, J., dissenting) (noting that all four dissenting justices questioned significance the December 12 th deadline).
[14] 121 S.Ct. at 532.
[15] Gore v. Harris , 2000 WL 1800752 (Fla.)
[16] 2000 WL 1800752 at *9, and cases cited therein.
[17] See , supra , note 9.
[18] 121 S.Ct. at 541 (Stevens, J., dissenting).
[19] Boy Scouts of America v. Dale , 530 U.S. 640 (2000).
[20] Roberts v. United States Jaycees , 468 U.S. 609 (1984).
[21] Although the Court's decisions in Boy Scouts of America , 530 U.S. at 640, and Roberts , 478 U.S. at 609, did not involve application of the federal Equal Protection Clause, the concepts of equality, uniformity and fundamental fairness inherent in the interpretation and implementation of state anti-discrimination laws is substantially similar.
[22] 121 S.Ct. at 541 (Stevens, J., dissenting).
[23] 121 S.Ct. at 550 (Ginsburg, J., dissenting). With a vote differential between the candidates of about .008%, it would appear that any minor variation in the application of the intent of the voter standard was preferable to certifying an election where the known rate of error dwarfed the difference in the vote totals between the two candidates. See 121 S.Ct. at 541 n. 4 (Stevens, J., dissenting) (discussing statistical rates of error in vote tabulating process).
[24] 121 S.Ct. at 557 (Breyer, J., dissenting).
[25] 121 S.Ct. at 550-551 (Breyer, J., dissenting).
[26] 121 S.Ct. at 542-543 (Souter, J., dissenting).
[27] Joan Biskupic, Election Still Splits Court , USA Today (Jan. 22, 2001, at 1A ("The court's nine justices, uncomfortable with their role in such a high-stakes political contest, have remained tense with one another since the 5 - 4 ruling that shattered many Americans' image of the court as an institution above the partisan politicking that goes across the street in Congress.").
[28] 121 S.Ct. at 555-558 (Breyer, J., dissenting) (discussing statutory procedure established by Congress to resolve disputes involving selection of presidential electors).
[i] @2000 BY Richard A. Sinapi, Esquire