POLITICS DECEMBER 24, 2000
ON MONDAY, WHEN the Supreme Court heard arguments in Bush v. Gore, there was a sense in the courtroom that far more than the election was at stake. I ran into two of the most astute and fair-minded writers about the Court, who have spent years defending the institution against cynics who insist the justices are motivated by partisanship rather than reason. Both were visibly shaken by the Court's emergency stay of the manual recount in Florida; they felt naïve and betrayed by what appeared to be a naked act of political will. Surely, we agreed, the five conservatives would step back from the abyss.
They didn't. Instead, they played us all for dupes once more. And, by not even bothering to cloak their willfulness in legal arguments intelligible to people of good faith who do not share their views, these four vain men and one vain woman have not only cast a cloud over the presidency (jf George W. Bush. They have, far more importantly, made it impossible for citizens of the United States to sustain any kind of faith in the rule of law as something larger than the self-interested political preferences of William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O'Connor.
This faith in law as something more than polities has had powerful opponents throughout the twentieth century. For everyone from legal realists and critical race theorists to contemporary pragmatists, it has long been fashionable to insist that the reasons judges give are mere fig leaves for their ideological commitments. Nevertheless, since its founding, THE NEW REPUBLIC has resisted this cynical claim. From Learned Hand and Felix Frankfurter to Alexander Bickel, the editors of this magazine have insisted that, precisely because legal arguments are so malleable, judges must exercise radical self-restraint. They should refuse to second-guess the decisions of political actors, except in cases where constitutional arguments for judicial intervention are so powerful that people of different political persuasions can readily accept them.
This magazine has long argued that the legitimacy of the judiciary is imperiled whenever judges plunge recklessly into the political thicket. And this has led editors of different political persuasions to oppose the judicial invalidation of laws we disagreed with as well as those we supported—from Progressive-era labor laws to the New Deal administrative state to laws restricting abortion and permitting affirmative action. In all these cases, we argued that judges should stay their hand. Our views about judicial abstinence have been those of Oliver Wendell Holmes: "If my fellow citizens want to go to hell, I will help them," be said. "It's my job." But in Bush V. Gore, as in Dred Scott and Roe v. Wade, the justices perceived their job differently. They foolishly tried to save the country from what they perceived to be a crisis of legitimacy. And they sent themselves to hell in the process.
The unsigned per curiam opinion in Bush v. Gore is a shabby piece of work. Although the justices who banded the election to Bush—O'Connor and Kennedy—were afraid to sign their names, the opinion unmasks them more nakedly than any TV camera ever could. To understand the weakness of the conservatives' constitutional argument, you need only restate it: Its various strands collapse on themselves. And, because their argument is tailor-made for this occasion, the conservatives can point to no cases that directly support it. As Justices John Paul Stevens. Ruth Bader Ginsburg, and Stephen Breyer write in their joint dissent this "can only lend credence to the most cynical appraisal of the work of judges throughout the land."
What, precisely, is the conservatives' theory? "Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another," they declare. The citation is Harper v. Virginia Board of Elections, the case that invalidated the poll tax in 1966 on the grounds that it invidiously discriminated against the poor. But there is no claim here that Florida's recount law, shared by 32 other states, discriminates against the poor. Indeed. Florida argued that its scheme is necessary to avoid discrimination against the poor, because a uniform system of recounting that treated the punch-card ballots used in poor neighborhoods the same as the optically scanned ballots used in rich ones would systematically undercount the votes of poorer voters. By preventing states from correcting the counting errors that result from different voting technologies, the conservatives have precipitated a violation of equal treatment far larger than the one they claim to avoid.
"The fact finder confronts a thing, not a person," write the conservatives in a clumsy and perverse inversion of the famous line from Reynolds v. Sims, the great malapportionment case, which noted that "legislators represent people, not trees." But things do not have constitutional rights; people have constitutional rights. It is absurd to claim that the "right" of each ballot to be examined in precisely the same manner as every other ballot defeats the right of each individual to have his or her vote counted as accurately as possible. Were this theory' taken seriously, many elections over the past 200 years would have violated the equal protection clause, because they were conducted using hand counts with different standards. The effect of the majority's whimsical theory is to fan the suspicion, which now looks like a probability, that the loser of both the popular vote and the electoral vote has just become president of the United States. At least the ballots can sleep peacefully.
The conservatives can rustle up only two cases that purportedly support their theory that Florida's recount scheme gave "arbitrary and disparate treatment to voters in its different counties." (Both were written in the 1960s by liberal activist Justice William Douglas, which must have given the conservatives a private chuckle.) The first case, Gray v. Sanders, held that Georgia's county-based scheme of assigning votes in the Democratic U.S. senatorial primary discriminated against voters in urban counties, whose votes were worth less than those in rural counties. The same logic, applied to this case, would hold that the Florida legislature could not adopt a county-based scheme for assigning votes in presidential elections. But this conclusion is completely inconsistent with the conservatives' earlier argument, the one that emboldened them to stop the manual recount in the first place: that Article 2 of the Constitution allows the Florida legislature to structure its presidential electing system however it chooses. The second case, Moore v. Ogilvie, held that applying "a rigid, arbitrary formula to sparsely settled counties and populous counties alike ... discriminated against the residents of the populous counties of the State in favor of rural sections." That case, in other words, does not support the conservatives' claim that ballots in rural and urban counties must be counted and recounted in precisely the same manner. It suggests the opposite.
THE REASON THE Conservatives can find not a single precedent to support their equal protection theory is because the theory is made up for this case only. But the damage is not so easily limited. The Supreme Court has called into question not only the manual-recount procedure adopted by the legislature of Florida but our entire decentralized system of voting—in which different counties use different technologies to count different ballots designed differently and cast at different hours of the day. In addition to throwing the presidential election and destroying the legitimacy of the Supreme Court, Bush v. Gore will spawn an explosion of federal lawsuits after every close election, lawsuits arguing that different counties used different ballot designs and voting systems and counted the ballots in different ways.
In this way, Bush v. Gore is a ludicrous expansion of cases like Shaw v. Reno, in which the same five-member conservative majority, led by the addled and uncertain Sandra Day O'Connor, held that federal courts must second-guess each legislative exercise in state and federal redistricting to decide whether or not race was the "predominant purpose" in drawing district lines. The idea that this usurpation of our democratic electoral system by the federal judiciary has been precipitated by a group of conservatives who once posed as advocates of judicial restraint and champions of state legislatures can only be met with what the legal scholar Charles Black called the sovereign prerogative of philosophers: laughter.
But the majority asks us not to worry about the implications of its new constitutional violation. "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities," the justices write. It certainly does. But a mobilized nation is now far less likely to tug its collective forelock and wait for the preening O'Connor and Kennedy to sort out the confusion on our behalf. We've had quite enough of judicial saviors.
IN A POIGNANT attempt to split the difference between the two camps. Justices Breyer and David Souter tried to prevent the Court from destroying itself. They agreed that applying different counting standards to identical ballots in the same county might violate the equal protection clause, and they proposed sending the ballots back to Florida and letting its courts apply a uniform counting standard. But their attempt at statesmanship was crudely rejected by O'Connor and Kennedy, which left Breyer and Souter with their bands extended, played for dupes like everyone else who naively believed the conservatives were operating in good faith. "Because the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U.S.C. Sec. 5," O'Connor and Kennedy wrote in the tortuous punch line of their opinion, "Justice Breyer's proposed remedy—remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest until December 18—contemplates action in violation of the Florida election code." With this feint at deference to the state court at precisely the moment there was nothing left to defer to, the jig was up. O'Connor and Kennedy had converted the Florida courts passing reference to the federal law telling Congress which electoral slate to count in the event that a controversy was resolved before December 12 into a barrier, now mysteriously embedded in state law, that prevented the Florida Supreme Court from completing manual recounts after December 12. And for the Court to announce this rule at ten o'clock at night on December 12, after having stopped the count two precious days earlier, only added to the gallows humor.
It will be impossible to look at O'Connor, Kennedy, Scalia, Rehnquist, and Thomas in the same light again, much as it was impossible to look at President Clinton in the same light after seeing him exposed in the Starr Report. But this time the self-exposure is also a little bracing. Conservatives have lectured us for more than 30 years about the activism of the Warren and Burger Courts. Those tinny and hvpocritical lectures are now, thankfully, over. By its action on December 12, the Supreme Court has changed the terms of constitutional discourse for years to come. Just as Roe v. Wade galvanized conservatives a generation ago to rise up against judicial activism, so Bush v. Gore will now galvanize liberals and moderates for the next generation. But, unlike the conservative opponents Roe, liberals must not descend to the partisanship of the current justices; they must transcend it. The appropriate response to Bush v. Gore is not to appoint lawless liberal judges who will use the courts as recklessly as the conservatives did to impose their sectarian preferences on an unwilling nation. The appropriate response, instead, is to appoint genuinely restrained judges, in the model of Ginsburg and Breyer, who will use their power cautiously, if at all, and will dismantle the federal judiciary's imperious usurpation of American democracy. Those of us who have consistently, if perhaps naively; opposed liberal and conservative judicial activism throughout the years can now point to Roe and Bush as two sides of the same coin. (How fitting that Bush is now a dubious president and a dubious precedent.)
In his dissent in Casey v. Planned Parenthood, the abortion case that reaffirmed Roe in 1992, Scalia recalled the portrait of Chief Justice Taney that hangs in the Harvard Law School library. Taney had led a bitterly divided Supreme Court to strike down the Missouri Compromise; but, instead of saving the nation from its partisan divisions, his reckless intervention precipitated the Civil War:
There seems to be on his face, and in his deep-set eyes, an expression of profound sadness and disillusionment. Perhaps he always looked that way, even when dwelling upon the happiest of thoughts. But those of us who know how the luster of his great Chief Justiceship came to be eclipsed by Dred Scott cannot help believe that he had that case—its already apparent consequences for the Court and its soon-to-be-played-out consequences for the Nation—burning on his mind. I expect that two years earlier he, too, had thought himself "call[ing] the contending sides of national controversy to end their national division by accepting a common mandate rooted in the Constitution." It is no more realistic for us in this litigation, than it was tor him in that, to think that an issue of the sort they both involved ... can be "speedily and finally settled" by the Supreme Court. Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.
Who would have dreamed that in describing Taney's portrait Scalia imagined his own?