On the Twitter today, Jacob Levy made the half-defense of Bush v. Gore perhaps most commonly made by smart people: the majority opinion was indefensible, but the outcome is not, because the Rehnquist concurrence (arguing that the Florida courts violated the provision of Article II that the “State shall appoint [electors] in such Manner as the Legislature thereof may direct”) was persuasive.*
I actually think something like the opposite is true. In the abstract, the holding that the arbitrary differences in ballot-counting found in the Florida system violated the equal protection clause is not entirely unreasonable. There’s no real precedent for it, it’s especially inconsistent with the typical conservative interpretations of the 14th Amendment, and the way in which the majority applied the alleged holding was so flagrantly unprincipled it approached lawlessness, but the holding itself is not inconsistent with the text, structure, or purpose of the 14th Amendment.
The Rehnquist concurrence, though, is just specious on its face. As Ginsburg pointed out in her dissent, the fact that Article II gives state legislatures (as opposed to courts) the authority to regulate presidential elections doesn’t in itself say anything about the legitimacy of the actions of the Florida Court — “The Framers of our Constitution, however, understood that in a republican government, the judiciary would construe the legislature’s enactments.” (Indeed, the majority opinion did just that when it assumed that the Florida legislature intended to take advantage of the “safe harbor” provision to justify shutting down the recount.) So if the argument is to hold water, Rehnquist has to show that the Florida Supreme Court’s decision distorted Florida law to such an extent that it was not engaging in jurisprudence at all. This is a radical argument that places a very high burden of proof on the United States Supreme Court.
Given the law that is being construed, however, this is a frankly ridiculous claim. The statute governing contested elections specifically gave the courts the authority to “provide any relief appropriate under such circumstances.” There may be extreme circumstances in which a state court might distort state law to such an extent that it could be usurping the will of the legislature. But surely a case in which the legislature broadly delegated the ability to provide remedies to the courts cannot be one of them.
There are many things one can criticize O’Connor and Kennedy for when it comes to this case, but the failure to join the Rehnquist concurrence isn’t one of them. It did not constitute a remotely adequate defense of a federal intervention into the electoral dispute in Florida.
*In comments, Jacob notes that “My claims were more modest: “colorable” and “credible”– not “correct” or “persuasive” or “adequate.”” Point taken, although I think “credible” and “adequate” are essentially the same thing.