Copyright (c) 2001 First Things 110 (February 2001): 11-12.
The best thing to be said about the endgame of the presidential election is that, bad as it was, it could have been much worse. It was unfortunate, to put it mildly, that in Bush v. Gore the U.S. Supreme Court voted five–to–four along predictable ideological lines to end the endless election. But had the Court not acted to quash the Florida Supreme Court’s reckless extension of the state recount, the intermittent talk of “constitutional crisis” we had heard during the five weeks following November 7 might well have become reality. (For a somewhat different take on this point, see RJN’s analysis of the election in Public Square.)
Consider the circumstances. It is quite possible (though not certain) that the manual recount, conducted with disputed and varying standards and up against an imminent deadline, would have wound up with incomplete results but with Al Gore in the lead. The Florida court would then presumably have insisted that the Gore electors be certified. The Florida legislature, meanwhile, convinced both that the recount was invalid and that, in any case, it was constitutionally charged with selecting the state’s electors, would have picked electors pledged to George Bush. The two sets of electors would have been presented to Congress for approval, and, assuming votes along party lines, the Senate would have opted for Gore’s list, the House of Representatives for Bush’s. Under the Constitution, the issue would have gone for resolution to the House, where, since each state has one vote and Republicans have majorities in a majority of state delegations, Bush would finally have emerged as victor.
The result, in other words, would have been the same, but now with another month of hypercharged partisan rhetoric and conflict. But that would have been only the beginning. Under these conditions, Gore supporters would be expected to accept defeat when not only had they won the popular vote nationally, but they had been announced by the Florida Supreme Court as victors in the state that tipped the election to Bush. That would have been a political disaster that left a future Bush Administration under an impossible cloud of illegitimacy, and it is clear that the U.S. Supreme Court majority saw all this when it stopped the Florida recount before there could be any announcement of a Gore lead in the Florida popular vote.
Does this make the Supreme Court majority Justices political partisans, as so many Gore supporters have charged? Only if one thinks that their decision to overrule the Florida court stemmed not from genuine constitutional concerns but from a controlling desire that Bush win, and that he be seen as having won legitimately (or at least as legitimately as conditions allowed). That, of course, is a highly controverted matter, and partisans of left and right have predictably disagreed on their readings of it.
It is worth noting that in addition to the five majority Justices two other Justices, Stephen Breyer and David Souter, had noted possible constitutional problems in the recount process. (Their alternative to the majority decision—that the case be remanded to the Florida court with permission to continue the count but under a unified statewide standard—made no practical sense. What would be the standard set, under what authority, and, in any case, how could the vote be thoroughly and fairly completed, with time for further possible legal appeal, under the looming deadlines indicated by state election law?)
Critics of the majority decision have emphasized the presumed hypocrisy of Justices who are normally advocates of judicial restraint acting, in this case, to override a state court in interpreting state electoral law, a matter normally held to be outside federal purview. Suddenly, or so it is said, strict constructionists became judicial activists, and under conditions that put their judicial integrity under suspicion.
There is no doubt irony here: the U.S. Supreme Court had to engage in what looked like judicial activism in order to thwart judicial activism run amok in Florida. But that convicts the majority Justices neither of hypocrisy nor partisanship. They felt compelled to act to block a state court decision that the Weekly Standard described as “an irrational and legally groundless edict that might actually alter a presidential election.”
Now the Weekly Standard, which was firmly in Bush’s corner, can hardly be counted as a neutral observer in this matter. But consider the words of Charles T. Wells, the Chief Justice of the Florida Supreme Court who was one of the dissenters in the four–to–three decision extending the recount (and who had gone along with an earlier unanimous decision of the court extending the certification deadline in order to accommodate a manual count of the ballots).
“I have a deep and abiding concern,” Judge Wells wrote, “that the prolonging of judicial process in this counting contest propels this country and this state into an unprecedented and unnecessary constitutional crisis. I have to conclude that there is a real and present likelihood that this constitutional crisis will do substantial damage to our country, our state, and to this Court as an institution.” “I must regrettably conclude,” he continued, “that the majority ignores the magnitude of its decision,” aspects of which he goes on to characterize as “quite extraordinary” and “[in] plain error.” In sum: “I could not more strongly disagree with [the majority] decision to . . . prolong this judicial process.” Wells’ dissent, read in full, is devastating (as is the concurring dissent of the other minority judges, which says, among other things, that “the majority is departing from the essential requirements of the law by providing a remedy which is impossible to achieve and which will ultimately lead to chaos”).
Wells also provides a potential defense of the propriety of the U.S. Supreme Court’s intervention in the case. This is not simply a state matter, he points out: “Directing [a lower circuit court] to conduct a manual recount of the ballots violates Article II, Section l, Clause 2 of the United States Constitution, in that neither this Court nor the circuit court has the authority to create the standards by which it will count the . . . ballots.” Wells also reminds his fellow judges that the U.S. Supreme Court had earlier in the counting process raised questions as to the Florida Supreme Court’s authority to order partial recounts, and his colleagues’ decision to do so anyway “appears to me to be in conflict with the United States Supreme Court decision.”
Wells anticipates the overturn of the Florida court’s action, one way or another: “I . . . believe that the majority’s decision cannot withstand the scrutiny which will certainly immediately follow under the United States Constitution.” That does not specifically invite the U.S. Supreme Court to be the agent of the reversal—he could have had in mind the Florida legislature or the U.S. Congress—but the reference to the “conflict with the United States Supreme Court decision” would seem, at the very least, to leave that option open.
All in all, it seems reasonable to conclude that the decision in Bush v.
Gore, while unusual, was far from indefensible. The Court faced an extraordinary
and unprecedented situation. It knew that the Florida court had perpetrated
outrageous constitutional mischief, and by acting as promptly and authoritatively
as it did it minimized the effect of that mischief. The majority Justices, confronted
with a political and legal mess for which there was no unmessy solution, found
perhaps the least messy solution available. Not every active use of the Supreme
Court’s authority constitutes an exercise in judicial activism.