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What You Should Know About Bush v. Gore


As Ezra notes, Katherine Harris’ laugh-a-minute campaign–which is particularly amusing in light of the steady stream of GOP arguments that she was a great public official while she was handing an election to the campaign she was working for–will bring Florida 2000 back into view. I was choking on my own rage, however, to see in comments that not only were wingnuts were once again spreading lies about the Supreme Court’s lawless behavior, but that nobody was calling them on it. So, for future reference:

1)Bush v. Gore was a 5-4 opinion. (If I could put that in neon, I would.) Full stop. No qualifications. No dissenter joined any aspect of the opinion of the Court. Pace uberhack Stuart Taylor, there is no such thing as a “partial concurrence.” You join an opinion, or some aspect of an opinion, or you do not. Souter and Breyer did not join any part of the per curiam, including its equal protection analysis. Anyone claiming that Bush v. Gore is a 7-2 opinion is lying, or lacks an even rudimentary understanding of constitutional law.

2)Harris’ running out the clock was extremely important, and indeed between that and the decisions of various local boards in the face of Harris’ handiwork and the manufactured bourgeois riots Bush was likely to have emerged the winner of the recount that the Supreme Court stopped. However, it is important to note that the “safe harbor” deadline that was looming does not provide the slightest justification for stopping the recount. As Souter said, arguments that going beyond the “safe harbor” was of constitutional significance were farcical:

The 3 U.S.C. § 5 issue is not serious. That provision sets certain conditions for treating a State’s certification of Presidential electors as conclusive in the event that a dispute over recognizing those electors must be resolved in the Congress under 3 U.S.C. § 15. Conclusiveness requires selection under a legal scheme in place before the election, with results determined at least six days before the date set for casting electoral votes. But no State is required to conform to §5 if it cannot do that (for whatever reason); the sanction for failing to satisfy the conditions of §5 is simply loss of what has been called its “safe harbor.” And even that determination is to be made, if made anywhere, in the Congress.

And while the Florida Court had assumed that the legislature, all things being equal, intended to take advantage of the “safe harbor” provision, it certainly did not hold that the legislature would prefer meeting the “safe harbor” to finishing a proper recount, and states have submitted electors far after the “safe harbor” deadline without raising any significant problems. And the problems with the majority’s combination of a newly minted equal protection standard and their stopping of the recounts are obvious. As Kim Scheppele puts it:

In the per curiam opinion in Bush v. Gore, the December 12 “safe harbor” suddenly turned into a blockaded port. The Supreme Court, in effect, prohibited recount ships from exploring the waters beyond the safe harbor, even though the Florida Legislature had nowhere put into the law anything that indicated such a preference, and even though the Florida Supreme Court, while clearly hurrying to try to meet this date, had not indicated that it was a blockade date for them either if there were important considerations of fairness at stake. Other states had clearly gone beyond this date in the past and still had their electors uncontroversially recognized far later in the process than the “safe harbor” date of December 12. Suddenly, however, the December 12 date became an absolute deadline preventing the newly announced standards from being applied to the matter at hand.

This particular aspect of the Court’s decision has few defenders even among those who otherwise broadly agree with what the Court did in Bush v. Gore. But the deadline was critical to the result; in fact, in large measure, the deadline was the result. The per curiam opinion announced an ambitious set of guarantees that Florida law had to ensure, and then said that time was up so that standards could not be formulated and applied in the case that provided the occasion for the change in the law.

This combination of the ambitious new standards and the miserly deadline created an impossibility problem. If the Gore team sought to follow the guidelines for creating a uniform set of counting standards, it would miss the deadline. If it sought to meet the deadline, it could not create the standards. It was, at the time Bush v. Gore came down, impossible for the Gore team to satisfy simultaneously both legal requirements that the Court set out.

How can we think about what is wrong with this? Again, the rule-of-law jurisprudence of the post-horror constitutional courts provides some guidance. Particularly in soviet-style legal systems, these sorts of Catch 22 situations were not unusual. And it was precisely this sort of experience that has led post-horror courts to be on the lookout for impossibility situations in particular, using their powers to do the opposite of what the U.S. Supreme Court did. Rather than announcing standards that create new impossibility problems, constitutional courts typically use their powers of judicial review to say that an interpretation of law creating such impossibilities is in itself a violation of the rule of law. When law commands two contradictory things, the rule of law requires that the contradiction be removed. For a court to participate actively in the creation of such an impossibility seems, in comparative perspective, quite astounding.

And this is why Breyer and Souter did not join any aspect of the per curiam. Their equal protection analysis could not have been the same, because the system that gave the vote to Bush was just as arbitrary and lacking in uniform standards as the recount ordered by the Florida Court. (And there’s the additional issue that the Florida Court didn’t establish standards because the Supreme Court told it not to.)

And what makes the attempts to pretend that 7 justices agreed about the equal protection violation particularly odious is that this disjuncture identifies what was most appalling about this opinion. It is true that the equal protection analysis egregiously contradicts the previous jurisprudence of at least three members of the majority, but these kinds of inconsistencies aren’t terribly unusual. Their attempts to deny that this principle had precedential value is much more problematic. But their unwillingness to apply the alleged controlling principle even within the case at hand–making it clear that the decision’s purpose was to support a favored litigant rather than to advance a particular contestable constitutional principle–is as stark a violation of the principles of the rule of law as can be imagined.

…As Dave reminds us in comments, the casebook I (used to) use is still claiming that Bush v. Gore was 7-2. Really, this is one of the great propaganda coups of all time.

…Many good comments, especially about Breyer joining Stevens’ opinion. I think it’s worth quoting the opening of Breyer’s dissent:

The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume.

I think that’s pretty unequivocal. I also wish, in retrospect, that Breyer and Souter had figured out they were being played for suckers and withdrawn their dissents, but I guess you can’t blame them for trying ot fashion a compromise, given that the alternative was the destruction of the Court’s integrity.

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