531 U.S. 98 (2000)


In the aftermath of the 2000 U.S. presidential election, a series of lawsuits were filed by George W. Bush and Al Gore over alleged undervotes in the state of Florida. Because the margin of victory was so thin, both in Florida and in the Electoral College, each court decision carried with it the potential to make either Bush or Gore the President of the United States of America. Bush v. Gore was the case that ultimately did just that.

Like most Supreme Court cases, Bush was an appeal. The case preceding it was Gore v. Harris, in which Al Gore sued Florida secretary of state Katherine Harris for certifying "a number of illegal votes" and rejecting enough "legal votes" to "change or place in doubt the result of the election." While the case was initially decided in favor of Harris, Gore appealed it to the Florida Supreme Court, who ruled in favor of Gore and ordered all possible missed legal votes to be manually recounted.

The Florida court issued their ruling on December 8, 2000. Bush's lawyers, who were representing Harris, appealed the decision to the United States Supreme Court the next day, and received a 5-4 emergency injunction from the Court to immediately halt the recounts. In a very rare show of speed, the justices in Washington asked for briefs within 24 hours, and agreed to hear the case at 11:00 AM on the eleventh, less than 48 hours away.

The Injunction

The mere fact that the Supreme Court issued such an injunction shocked many pundits, especially liberal ones. In their first ruling on the Florida election (Bush v. Palm Beach County Canvassing Board), the Court had made a unanimous decision to leave the election up to the state of Florida. Now, it was bringing itself back into the game, and its injunction was being supported by the five conservative justices (Antonin Scalia, William H. Rehnquist, Anthony Kennedy, Clarence Thomas, and Sandra Day O'Connor) who would normally be expected to favor the rights of the state of Florida in choosing its own electors.

Bush's lawyers argued that the Texas governor faced "irreparable harm" from the selective recount policy being instituted by courts in Florida. The five justices seemed to agree. Justice Scalia, explaining the injunction on behalf of the majority, stated that the recounts did constitute irreparable harm to Bush, and that the policy of "count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires." The recount must be stopped, he argued, because "permitting the count to proceed on {an} erroneous basis will prevent an accurate recount from being conducted on a proper basis later." He cited "degradation of the ballots" as a very real risk.

More than a few observers read these words and concluded that Bush had already won the case. Conservative analysts, such as William Safire and Charles Krauthammer, argued that the Supreme Court was merely putting Florida's judges in their place, while liberal analysts such as Thomas Oliphant and Jonathan Alter said that the Supreme Court was overstepping its bounds, and proving itself as yet another partisan tribunal throwing politics into what should be an objective debate.

The Case

Bush's lawyers said that the Florida Supreme Court's decision violated Amendment XIV of the Constitution. From a strict constructionist point of view, the amendment was intended to give citizenship to former slaves in the wake of the Civil War, and ensure equal rights for all Americans. Bush's case, however, took advantage of a sentence in the amendment which reads:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Since the recounts were being carried out only in certain counties where Gore believed he could win, and since these counties all had differing standards of what constituted a valid vote, Bush's equal protection as a candidate was being violated. So his lawyers said.

Gore's lawyers, faced with the fact that a majority of the Court had already registered its dislike for Gore's case, had to come up with a reasonable counter-argument. They said that the Florida Supreme Court had done everything it could do to ensure equal treatment of both parties, and that requiring all ballots to be treated in the same fashion would require a uniform federal standard for counting votes. They also said that ending the recounts was not an equitable way to settle the dispute: instead, the Court needed to establish a standard by which the votes should be counted, and then let the ballots be counted by that standard.

The Arguments

As in the previous Bush case, the Supremes agreed to release a recording of the oral arguments as soon as they were complete, something which is usually not done. This meant that the media and the public could find out what happened in the courtroom immediately after the arguments were finished.

Theodore Olson represented Bush, as he had before. Stephen Breyer initially pushed Olson to name a suitable standard for counting the votes, something Olson was reluctant to do as it would play into Gore's argument. David H. Souter soon joined in, and managed to get Olson to agree that imposing a standard would not violate the Constitution's stipulations that elections must be up to the states, which amounted to a retraction of one of Bush's earlier arguments before the Court. Justice Scalia ended up saving Olson's argument by asserting that if the voters were told how to vote properly, and then made an error, their vote logically shouldn't be counted. Olson fell back on this idea for the remainder of his argument with the liberal justices.

David Boies represented Gore, and was first questioned by Justice Kennedy, who said that voter intent could not be a measurable standard, whereas the physical state of the ballot could. Justice Souter soon piped in, saying that as long as there was a standard for determining whether or not a dimpled chad or hanging chad represented a valid vote, then the ballots could be counted in a uniform manner with voter intent in mind. It was one of several attempts by Souter to bring Kennedy over to Gore's side, which would have tipped the vote in Gore's favor. But when Souter finally came out and asked Boies what a good uniform standard might be, Boies hesitated for a few seconds, and Scalia mockingly stated that it would be "to count every vote."

The Decision

At 10:00 PM on December 12, the Supreme Court issued its decision by sending messengers with printed copies to the journalists camped outside. It was perhaps one of the most ridiculous moments in cable news history, as reporters flipped through the lengthy folios on national television trying to decipher what the justices had decided.

The same justices who supported the injunction supported Bush's case. By a 5-4 majority, the Florida recounts were halted, effectively handing George W. Bush the White House. That wasn't the whole decision, though, which was part of the reason why the reporters took so long to figure it out.

One of the most controversial facets of the decision was that the justices confined it to the 2000 election: in other words, the federal intervention would not be a precedent for future elections. Many liberals saw this as a blatantly partisan move, because it would allow the conservative justices to go back to an ideological states' rights argument if a Democratic candidate made the same charges Bush did.

It was then revealed that two liberal justices, John Paul Stevens and Ruth Bader Ginsburg, had sided with the conservative five in calling the Florida Supreme Court's recount order unconstitutional, but had not joined in the opinion because they favored letting the Florida court decide it once more.

The dissenting opinion, written by Justice Souter, stated that the best course of action would have been to leave the case in Florida and let Congress work it out, as laid out in federal law, in the event that disputes were not settled under Florida law. Where the conservatives had favored federal judicial activism, the liberals had favored states' rights and legislative supremacy. It was an ideological switcheroo of epic proportions, and it only helped to fuel allegations that the Supreme Court was being a partisan political body rather than an impartial tribunal.

The Result

Knowing there was no way to contest the Supreme Court's decision, Al Gore conceded the next day, ending the monthlong dispute over Florida's electoral votes. George W. Bush was inaugurated a month later, on January 20, 2001.

Although gray mocker makes a valid point below, I personally believe that the rationale behind this decision was wholly partisan. If the Court had left the decision up to Congress, Al Gore would have almost certainly won, as he was president of a sharply-divided Senate at the time. Also, if the justices were really seeking to expand their powers, they would have allowed the case to be precedent for the future.

How did the Supreme Court become the deciding authority on the 2000 election?

It is often assumed that the Supreme Court had the constitutionally vested authority to decide the contested 2000 election. In fact the question of who ultimately is responsible for arbitrating a close and hotly disputed election result is a constitutional gray area. Indeed Bush v. Gore was not the first time the Supreme Court was presented with an opportunity to “decide an election.” In 1876, the election of our President also hinged on a few key contested electoral votes. However, in this case the election was decided by a congressional "Electoral Commission." I contend that the 1876 election was decided by congressional committee rather than the Supreme Court itself because the Supreme Court at the time lacked the sufficient political capital to successfully render such a controversial decision, and that the 2000 Supreme Court was in a position of unique strength which empowered it to render a critical, momentous decision.

The Supreme Court in 1876 had limited prestige, being on the wrong side of public opinion on the Dredd Scott and subsequent Civil War era cases. The Taney Court in Dredd Scott issued an ambitious but ultimately failed attempt to single-handed settle the “slavery question.” Instead of accomplishing these goals, it succeeded in inflamming domestic division and precipitating the Civil War. Taney's contention that no law could outlaw slavery because such laws infringe upon the property rights of the slaveowner was ignored in the North, which passed and enforced laws outlawing the practice anyway. Later opinions during the Civil War, such as Merryman, protesting Lincoln's suspension of the writ of habeas corpus, fell upon the deaf ears of Lincoln's wartime republic. Continuing the pattern, the Reconstruction-era cases of Cummings v. Missouri and Ex parte Garland, on the constitutionality of mandatory loyalty oaths to the Union as a prerequisite of private sector employment were all disregarded as well. In blatant defiance of the Taney Court, these laws remained on the books for nearly 20 years. As a result of what Supreme Court historians call the "self-inflicted wound" of the Dredd Scott case and the subsequent period of emasculation, this was a Court the populace was accustomed to ignoring. Even if the 1876 election went to the Supreme Court, it would not have had the necessary weight of authority to break the political deadlock. As it were the idea that the digraced court should be empowered with the final say in the election was laughable to the powers that be of the time.

In contrast, the 2000 Rehnquist Court enjoyed considerable public prestige. Though the Supreme Court had tackled some difficult cases in the past half-century such as Brown v. Board of Education and Roe v. Wade, the Court had always managed to end up on the right side of history. In the former, its reasoning had become sacrosanct by the time of Bush v. Gore, and in the latter, the Supreme Court managed to chart a cautious course through the contradictory and ambiguous attitudes the public held on the uncomfortable question of abortion. Thus, it had the political capital necessary to render a conclusive decision – reflected in polls showing strong faith in the Supreme Court before the decision came down, especially compared to other avenues of resolution such as the Florida legislature or Congress. In a CNN/USA Today/Gallup poll, 61 percent of polled citizens indicated trust in the Supreme Court, 17 percent in Congress, 9 percent in the Florida Supreme Court, and 7 percent in the Florida legislature. It's true that prior to the decision the Gore campaign declared that it would abide by any Supreme Court decision - but this was merely the product of existing political realities, and itself only contributed minimally to the authority of the Court. The bottom line is that the weary electorate trusted the Supreme Court to decide something, anything. Thus the political fallout, while significant, was not nearly fatal - a post-decision NBC poll showed 43 percent of respondents declaring that the Supreme Court "remained objective" and a majority expressed relief that the ordeal was over.

It has become fashionable for conservatives - and some liberals, in the wake of Bush v. Gore - to decry the "judicial activism" that is somehow subverting the democratic process. The truth is that historically the Court has been a moderate force. As Alexander Hamilton pointed out, the Supreme Court has "neither the power of the purse (taxation) nor the sword (military)," and as such, is reliably tentative in its decisions. Cases in which the Supreme Court flouted clearly established public opinion - such as Lochner v. New York or Dredd Scott - have historically been safely ignored by a determined legislative and executive branch. It is a rare exception when the Court sticks its collective neck out in a controversial, very public case. Brown v. Board of Education is one such example - how the unproven Warren Court managed to make the country swallow that decision deserves another node entirely - and Bush v. Gore is a less estimable instance.

Primary Sources:
Gillman, Howard; "The Votes that Counted: How the Court Decided the 2000 Presidential Election" University of Chicago Press, 2001
Schwartz, Bernard; "A History of the Supreme Court" Oxford University Press, 1993
"Nation split over Florida recount but trusts U.S. Supreme Court" CNN.com: http://www.cnn.com/2000/ALLPOLITICS/stories/12/10/cnn.poll/

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