The Wilson Quarterly
Autumn 2001
pp. 76-89
The Professors and Bush v. Gore
by Peter Berkowitz and Benjamin Wittes
"You cannot raise the standard
against oppression, or leap into the breach to relieve injustice, and still
keep an open mind to every disconcerting fact, or an open ear to the cold voice
of doubt," warned the great American jurist Learned Hand (1872-1961).
"I am satisfied that a scholar who tries to combine these parts sells his
birthright for a mess of pottage; that, when the final count is made, it will
be found that the impairment of his powers far outweighs any possible
contribution to the causes he has espoused."
One need not share Learned Hand's drastic view to appreciate that political
engagement by scholars runs the risk of betraying intellectual integrity.
Scholars have a vital role in democratic debate, but to perform it properly
they must exercise a certain restraint. Americans today confront a range of
complex public-affairs issues--from the economic consequences of law and
government policies to the practical effects and moral implications of cloning
and stem cell research--that can be understood only with the help of expert
knowledge. In trying to come to reasoned and responsible judgments about such
matters, citizens depend upon scholars to marshal relevant facts and figures,
to identify the more and less likely consequences of law and public policy, and
to clarify the moral principles at stake. But deference to expert knowledge
depends in part on public confidence that scholars will honor their obligation
to separate the pursuit of truth from political advocacy and personal
advantage. When scientists wade into the public debate over stem cell research,
for example, we expect, above all, that they will give a fair and accurate
account of the facts. This is not to say that scholars cannot express opinions.
It means rather that their first obligation is to speak the truth. Scholars are
paid to not rush to judgment. If one scholar violates this obligation, the
authority of the rest is compromised, and the public is invited to view all
scholars as no different from the seasoned spinners and polished operators and
purveyors of the party line who crowd our public life.
Restraint may be hardest when justice is at stake. For legal scholars, the risk
is especially acute when they weigh in on a controversial case while they are
serving as consultants to a party to the controversy, or take an unyielding
stand before partisan fires have cooled. In recent years, law professors have
assumed a higher profile in public debates, and scholarly restraint has
steadily declined. No longer confined to the pages of professional journals,
law professors now appear regularly as pundits on TV and radio shows. Their new
prominence dates at least to 1987, when, amid an uprising in the legal academy,
the testimony of eminent law professors in the bitter Senate confirmation
hearings of Supreme Court nominee Robert Bork was nationally televised. A
decade later, legal academics found a new stage with the O. J. Simpson trial,
and they really hit their stride with the Kenneth Starr investigation and the
impeachment and Senate trial of President Bill Clinton. Few of them performed
admirably during those public spectacles. But this past winter, with the Florida
election controversy, members of the legal academy, in their role as public
intellectuals, reached a distressing new low in the exercise of scholarly
restraint.
*
Although the war over Florida's
25 electoral votes was waged on many fronts, the decisive battles occurred in
courts of law. Following the blunders by the television networks in calling the
Florida vote on the evening of November 7, 2000, and up through the U.S.
Supreme Court's dramatic intervention five Tuesdays later, on December 12, the
Bush camp and the Gore camp, an army of pundits, Florida lawyers, and an ample
supply of law professors from around the country struggled to make sense of the
legal wrangling in Florida. There were disputes about the legality of the
notoriously confusing butterfly ballot in Palm Beach County, the legality of
conducting manual recounts in some counties and not others, the legality of
varying standards for interpreting chads in manual
recounts (dimpled chads, dangling chads,
chads through which light passes), the legality of
excluding recounts finished after the statutorily imposed deadline, the
legality of improperly completed overseas absentee ballots in Martin and
Seminole counties, the legality of excluding recounts completed after the
deadline imposed by the Florida Supreme Court, and a host of other questions of
law. These disputes culminated in two controversial Florida Supreme Court
decisions, which were celebrated by Democrats as vindications of the will of
the people and denounced by Republicans as acts of judicial usurpation.
Partisan rivalry quickly turned to bitterness and anger in Florida,
and people on both sides passed beyond the limits of political civility. There
is surely something to be said for controversy in a democracy that worries
about the fading political engagement of its citizens. Yet when the case passed
to the highest court in the land, citizens had every right to expect that at
least one group would maintain a degree of calm and dispassion: the scholars
who serve as our national interpreters of the law. But Bush v. Gore
provoked from the legal academy a response that was without precedent. Never
before had a decision of the Supreme Court been subjected by large numbers of
law professors to such swift, intense, and uncompromising denunciation in the
popular press as greeted the December 12, 2000, ruling that effectively sealed
Governor George W. Bush's victory in the presidential election. No doubt the
professors' fury, which has yet to abate, tells us something about Bush v.
Gore. It also tells us something important about the professors'
understanding, or rather misunderstanding, of the public responsibilities of
intellectuals.
Many aspects of the Court's 5-4 decision in Bush v. Gore and the Florida
election controversy that it brought to an end should disturb the democratic
conscience. Despite a certain skepticism about the use of the equal protection
clause of the 14th Amendment, and a pronounced aversion to constitutional
innovation, the U.S. Supreme Court's five conservative justices expanded equal
protection doctrine and offered a novel reading of Article II, section 1, of
the Constitution, which provides that each state shall appoint presidential
electors "in such manner as the Legislature thereof may direct." Even
if one allows that the recount ordered by the Florida Supreme Court violated
equal protection guarantees (as seven of nine justices of the U.S. Supreme
Court and three of seven judges of the Florida Supreme Court said), the Court's
justification for halting the recount rather than directing the Florida court
to continue it on the basis of constitutionally appropriate standards (as the
two dissenting justices on the U.S. Supreme Court who acknowledged equal
protection problems with the Florida recount wished) has the appearance of a
technical legal trap being sprung. The evidence indicates that a
disproportionate number of African American voters in Florida
saw their votes spoiled. There is good reason to believe that on November 7, 2000, a majority of Florida
voters cast their ballots intending to vote for Vice President Al Gore. All
nine justices of the U.S. Supreme Court, moreover, faced a conflict of interest
in deciding Bush v. Gore: The new president would very likely have the
opportunity to nominate their new colleagues (or their successors). In
addition, the Florida election
controversy raised divisive political questions that the Court might have been
wise to leave for resolution to Florida
and, ultimately, to Congress.
The foregoing are serious matters, and they demand careful public
consideration. The problem is that much that has been written about Bush v.
Gore by law professors in their role as public intellectuals has not
advanced that kind of careful consideration. Instead, it has muddied the waters
and stirred more partisan ire. Far from counteracting the public's tendency to
collapse the legal dimension of the controversy into the political, many
scholars have encouraged it. The two dimensions can--and must--be separated.
The overarching political question was whether the electoral system, in Florida
and in the nation, reflected the will of the people. The fundamental legal
question was whether the Florida Supreme Court's two critical decisions, on
November 21 and December 8, complied with the requirements of American
constitutional law. (In the first case, in a lawsuit brought by Vice President
Gore, the Florida Supreme Court overruled a lower Florida court and extended by
12 days the deadline for protesting election returns and for officially
certifying the results; on December 8, again in a lawsuit brought by the vice
president, it overruled a lower Florida court and ordered as part of Gore's
contest of the official certification a statewide manual recount of undervotes.) The U.S. Supreme Court was called upon to
resolve only the legal dispute--the constitutionality of the conduct of the
Florida Supreme Court.
*
To listen to the nation's preeminent constitutional theorists tell it, Bush
v. Gore was an obvious outrage--nothing less than a politically driven
repudiation of democracy and the rule of law. In the months immediately
following the decision, Bruce Ackerman, a professor of law and political
science at Yale University and one of the nation's most prominent legal
intellectuals, spoke for a substantial majority of law professors when he
issued the brutal judgment--in agreement, he plausibly argued, with Justice
John Paul Stevens's dissent--that the majority opinion was "a blatantly
partisan act, without any legal basis whatsoever." Leading conservative
professors of constitutional law were not much heard from, and they were
comparatively measured in their statements: By and large they found in Bush
v. Gore a reasonable though flawed ruling. Two days after the decision,
University of Utah law professor Michael McConnell argued in the Wall Street
Journal that the Court was correct to conclude that the "manual recount,
as ordered by the Supreme Court of Florida, would be unconstitutional,"
but he found the "question of remedy" to be "the troubling
aspect of the decision." Conservatives, however, form only a small
fraction of the legal professoriate. The great majority of their fellow law
professors who spoke out on Bush v. Gore followed Ackerman and other
leaders in pouring scorn on it:
• Vanderbilt University
law professor Suzanna Sherry maintained in the New
York Times that "there is really very little way to reconcile this opinion
other than that they wanted Bush to win."
• Harvard University
law professor Randall Kennedy proclaimed in the American Prospect that Bush
v. Gore was a "hypocritical mishmash of ideas," and that
"the Court majority acted in bad faith and with partisan prejudice."
• University of Texas law professor Sanford Levinson asserted in the Nation that
"Bush v. Gore is all too easily explainable as the decision by five
conservative Republicans--at least two of whom are eager to retire and be
replaced by Republicans nominated by a Republican president--to assure the
triumph of a fellow Republican who might not become president if Florida were
left to its own legal process."
• American University
law professor Jamin Raskin
opened an article in the Washington Monthly by describing the case as
"quite demonstrably the worst Supreme Court decision in history," and
proceeded to compare it unfavorably with the notorious Dred
Scott decision.
• A total of 554 law professors from 120 American
law schools placed a full-page ad in the New York Times on January 13, 2001, declaring that the justices had
acted as "political proponents for candidate Bush, not as judges. . . . By
taking power from the voters, the Supreme Court has tarnished its own
legitimacy."
• Harvard University law professor Alan Dershowitz
asserted in Supreme Injustice: How the High Court Hijacked Election 2000 that
"the decision in the Florida election case may be ranked as the single
most corrupt decision in Supreme Court history, because it is the only one that
I know of where the majority justices decided as they did because of the personal
identity and political affiliation of the litigants. This was cheating, and a
violation of the judicial oath."
The gravamen of the complaint was that the five
conservatives on the Court--Chief Justice William Rehnquist, and Justices
Sandra Day O'Connor, Antonin Scalia,
Anthony Kennedy, and Clarence Thomas--hypocritically threw overboard their
long-held and repeatedly affirmed judicial philosophy of restraint, deference
to the states, and a preference that the political process,
rather than the courts, resolve disputes. In a breathtakingly important
case, one in which that philosophy would have guided them to a c_rrect result, they betrayed their principles. They
energetically extended the equal protection clause of the 14th Amendment, they
failed to defer to the Florida Supreme Court's interpretation of Florida
law, and they aggressively intervened in the political process before it had a
chance to play itself out. According to the Court's accusers, the majority's
rank partisan passion was the only explanation for this egregious betrayal. And
the damage, they contended, would be considerable: Bush v. Gore would
undermine the legitimacy of the Bush presidency--and of the Court itself.
If these charges are true, then Bush v. Gore deserves the opprobrium
that law professors have showered upon it. Yet the scholarly critics generally
seemed to regard the truth of their assertions as too obvious to require
sustained evidence or argument, if they considered evidence or argument
necessary at all. In fact, the careful study they failed to carry out before
announcing their verdict shows that not a single one of their charges is
obviously true, and that all, quite possibly, are false.
We do not mean to pass judgment on the ultimate correctness of the Court's
decision. The case, which is complicated and raises a variety of multilayered
questions of fact and law and politics, will be debated for years to come.
Indeed, our aim is to defend the case's difficulty against those scholars who,
sadly, insist that there is virtually nothing to understand about Bush v.
Gore that cannot be summed up with the term partisanship. The scholars'
hasty accusations of gross politicking may apply with more obvious justice to
the accusers themselves than to the Court majority whom they convict.
*
Recurring defects in the legal academy's initial reaction to Bush v. Gore
can be seen in the public pronouncements of three of its most eminent
constitutional theorists: Ackerman, Cass Sunstein,
and Ronald Dworkin.
Even those scholars whose public utterances were relatively responsible could
be found making flamboyant assertions supported only by their authority. In the
Chronicle of Higher Education (Jan. 5,
2001), for example, University
of Chicago law professor Sunstein declared that future historians would conclude
that the Court had "discredited itself" with its "illegitimate,
unprincipled, and undemocratic decision." We do not know what factors
caused Sunstein to come to this harsh conclusion,
because in his brief article he provided no arguments to support it. Nor did Sunstein mention that only three weeks earlier he had taken
a much more measured view. On December 13, the day after the case was decided, Sunstein told ABC News reporter Jackie Judd that the
opinion "was a stabilizing decision that restored order to a very chaotic
situation." On the same day on National Public Radio, Sunstein
observed: "The fact that five of them [the justices who signed the
majority opinion] reached out for a new doctrine over four dissenting votes to
stop counting--it's not partisan, but it's troublesome." While he did not
"expect the Court to intervene so aggressively," Sunstein
allowed on NPR that its decision may have provided "the simplest way for
the constitutional system to get out of this. And it's possible it's the least
bad way. The other ways maybe were more legitimate legally but maybe worse in
terms of more chaotic." Many months later, in the University
of Chicago Law Review, Sunstein attempted to synthesize these two seemingly
irreconcilable views. His more detailed analysis of the case, however, falls
far short of supporting the inflammatory language he used while the controversy
was still hot.
A more troubling characteristic of the assaults on the Court was the tendency
to misstate matters of fact and law. In the New York Review of Books (Jan. 11,
2001), New York University law professor Dworkin
offered a high-minded warning against "reckless accusations" of
partisanship: "It is, after all, inherently implausible that any--let
alone all--of them [the five- member majority] would stain the Court's
reputation for such a sordid reason, and respect for the Court requires that we
search for a different and more creditable explanation of their action."
In "sorrow," however, Dworkin concluded
that the "implausible" charge was correct--because "the legal
case they offered for crucial aspects of their decisions was exceptionally
weak." Yet in his essay, Dworkin failed even to
restate accurately the legal case the majority offered, and without meeting
that minimal requirement he never fairly engaged the majority's reasoning.
The defects in Dworkin's approach begin with a
tendentious characterization of events:
The conservatives stopped the democratic process in its tracks, with
thousands of votes yet uncounted, first by ordering an unjustified stay of the
statewide recount of the Florida vote that was already in progress, and then
declaring, in one of the least persuasive Supreme Court opinions that I have
ever read, that there was not time left for the recount to continue.
Whether the U.S. Supreme Court "stopped the democratic process in its
tracks" depends in part on whether the two Florida Supreme Court
rulings--of November 21 and December 8--that were guiding the process in Florida
were lawful and democratic. A scholar might responsibly criticize the Court by
showing that the two rulings were indeed lawful and democratic. But Dworkin examined neither of them.
If you believe--as three dissenting members of the Florida Supreme Court argued
in that body's 4-3 decision on December 8--that the majority's ruling departed
substantially from the legislative scheme in place on November 7 for resolving
election disputes, created serious equal protection problems, and provided a
remedy that was inherently unworkable and hence unlawful, the U.S. Supreme
Court's action begins to look very different. One might reasonably conclude
that, far from having "stopped the democratic process in its tracks,"
the Court rescued it.
Dworkin's contention that the recount was stopped with
"thousands of votes still uncounted" obscures the fact that Florida's
ballots were actually counted twice, by machines, as required by Florida
law in close elections (where the margin of victory is 0.5 percent or less). At
the same time, his anodyne reference to "the statewide recount of the Florida
vote" glosses over the dubious parameters of the manual recount actually
ordered by the Florida Supreme Court. It was not a full manual recount of the
presidential vote. Nor was it a full manual recount of undamaged ballots that
failed to yield a valid, machine-readable vote for president, as would appear
to have been required by the Florida Supreme Court's own principle that all
votes should be counted in pursuit of a "clear indication of the intent of
the voter." Rather, the Florida
court ordered a manual recount of a subset of the so-called nonvotes,
the undervotes, which are ballots (estimated to
number about 60,000) with no machine-readable vote for president. Despite the
objections raised by Florida chief justice Charles T. Wells in his dissent,
indeed without explanation, the majority excluded from the recount overvotes, an entire class of undamaged ballots (estimated
to number about 110,000) that were invalidated because machines detected
multiple votes for president. And yet, like the undervotes,
they too may have contained (and we now know did contain) discernible choices.
Dworkin also misstates the majority's holding, though
he claims it was "quite simple." The U.S. Supreme Court, Dworkin incorrectly argues, held that the Florida
recount violated equal protection only because it failed to establish a uniform
and specific standard for determining in the recount whether a ballot revealed
a voter's clear intention. In fact, the Court identified four discrete features
of the manual recount ordered by the Florida Supreme Court that raised equal
protection problems. In addition to the one Dworkin
mentions, the Court singled out problems with the arbitrary exclusion of overvotes, the inclusion in the results of an uncompleted
recount in Miami-Dade County,
and the use of untrained and unsupervised personnel to conduct the statewide
recount.
Having failed to mention three of the four problems that taken together, the
Supreme Court held, violated the fundamental right to vote protected by the
equal protection clause of the 14th Amendment, Dworkin
never reached the central question: whether, as the majority concluded, the
Florida recount in its various features violated the principle articulated in
Reynolds v. Sims (1964) that "the right of suffrage can be denied by a
debasement or dilution of the weight of a citizen's vote just as effectively as
by wholly prohibiting the free exercise of the franchise."
Though in the end, and for reasons that are not altogether clear, Dworkin allows that the Court's equal protection holding
was "defensible," he insists that the controversial remedy, which he
also misstates, was not. In Dworkin's understanding,
the U.S. Supreme Court halted the Florida
recount by adopting a "bizarre interpretation" of the intention of
the Florida legislature expressed
in the state's election law. The question concerned the state's approach to the
December 12 federal "safe-harbor" deadline (Title III, section 5, of
the U.S. Code), which provides that in counting electoral votes, Congress will
not challenge presidential electors if states appoint them by the safe-harbor
date and on the basis of laws in place before the election. As Dworkin correctly notes, adherence to the federal
safe-harbor law is not mandatory--if Florida
wished to put its electoral votes at risk by failing to meet the December 12
deadline, it was free under federal law to do so. But, according to Dworkin, the Court read into the Florida
statutory scheme a legal obligation to meet the "safe-harbor"
deadline and then, "in violation of the most basic principles of
constitutional law," imposed that interpretation of Florida
law on the Florida Supreme Court.
But the majority argued that in addressing the question of remedy it was giving
effect to the Florida Supreme Court's interpretation of Florida
law:
Because the Florida Supreme Court has said that the Florida Legislature
intended to obtain the safe-harbor benefits of 3 U.S.C. §5, 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, and hence
could not be part of an "appropriate" order authorized by Fla. Stat.
§102.168(8) (2000).
In other words, the majority claimed that the Florida Supreme Court itself
had interpreted Florida law as
imposing the December 12 deadline. Indeed, the Florida Supreme Court appears to
affirm that deadline as many four times in its December 11 opinion (which it
issued in direct response to the U.S. Supreme Court's request on December 4 for
clarification of the grounds for the Florida Court's November 21 decision). But
Dworkin never examines the December 11 opinion.
In fashioning its remedy, the majority plausibly claimed to rely upon and defer
to the Florida Supreme Court's interpretation of Florida
law. In fact, it was the remedy contemplated by the dissents of Justices
Stephen Breyer and David Souter,
and endorsed by Dworkin himself, that very likely would
have involved the Court in repudiating the Florida Supreme Court's reading of Florida
law. To be sure, even notable defenders of the U.S. Supreme Court's opinion
regard the remedy as its weakest link, but to be fairly criticized it must
first be correctly understood.
Perhaps the most serious infirmity in the law professors' response to Bush
v. Gore was the tendency, under the guise of legal analysis, to abandon
legal analysis. In contrast to Sunstein and Dworkin, Ackerman did not so much
as pause in his attack to caution against premature accusations of
partisanship. His verdict in the American Prospect (Feb. 12, 2001) was uncompromising:
"Succumbing to the crudest partisan temptations, the Republicans managed
to get their man into the White House, but at grave cost to the nation's ideals
and institutions. It will take a decade or more to measure the long-term damage
of this electoral crisis to the Presidency and the Supreme Court--but
especially in the case of the Court, Bush v. Gore will cast a very long
shadow."
As Ackerman explained in an article that appeared almost simultaneously in the
London Review of Books (Feb. 8, 2001),
the trouble with the 2000 election began with "the gap between the living
and written Constitutions." Under what Ackerman derisively calls "the
written Constitution," the president is selected by the Electoral College,
which gives smaller states disproportionate representation. But "the
living Constitution"--which is nowhere written down or codified--rejects
that unjust formula, having "created a system in which Americans think and
act as if they choose their President directly." Because Gore won the
popular vote, "George W. Bush's victory is entirely a product of the
federalist bias inherited from 1787." For Ackerman, Bush v. Gore
was part of the vast right-wing conspiracy, and, he declared in the American
Prospect, it called for drastic countermeasures: "When sitting [Supreme
Court] justices retire or die, the Senate should refuse to confirm any
nominations offered up by President Bush."
Ackerman is far clearer regarding what should be done about the Court's perfidy
than he is about what exactly was wrong with the justices' work. Whereas in the
American Prospect he accuses the Court of acting lawlessly, in the London
Review of Books he accuses it of foolishly applying the wrong law--the law that
actually exists (the written Constitution), rather than the one he believes
time has made more relevant (the living Constitution). At other times in the
same article, Ackerman argues only halfheartedly that the Court incorrectly
applied the "written Constitution." He concedes in the London Review
of Books that there were strong pragmatic reasons for the Court to get
involved: "If one is haunted by the specter of acute crisis, one can view
the justices' intervention more charitably. However much the Court may have
hurt itself, did it not save the larger Constitutional structure from greater
damage? Perhaps." He even goes so far as to
acknowledge, without actually engaging the legal arguments of the majority or
of the dissenters, that the Court's central holding,
which he misstates much as does Dworkin, was correct:
He says that he does "not challenge [the Court's] doctrinal
conclusion."
In the end, Ackerman's problem is not that the Court intervened, but that it
did so on Bush's behalf rather than Gore's: "The
more democratic solution would have been . . . to stop the Bush brothers from
creating Constitutional chaos by submitting a second slate of legislatively
selected electors. The court could have taken care of all the serious
difficulties by enjoining [Florida
governor] Jeb Bush not to send this slate to
Congress."
Leave aside the considerable legal difficulties in Ackerman's call for the
Court to issue an injunction that was not requested by any party to the
litigation against other persons and entities that were also not parties to the
litigation. The larger problem is that he would have had the Court issue orders
to elected state officials based on a nonexistent document (the living
Constitution), to whose authority neither Bush nor
Gore ever appealed, to protect a recount that he admits violated the law the
justices were sworn to uphold. What, one wonders, is democratic or lawful about
that?
*
Of course, it is possible that while the critics failed to state accurately
the arguments in Bush v. Gore, their basic charge--that the Supreme
Court undermined its legitimacy by riding roughshod over its own principles to
reach a purely partisan conclusion--is still correct. Yet even a brief
examination of those principles--an examination that none of the major critics
offered the public in conjunction with their harsh condemnations--and
reflection on the critics' premises and predictions reveal that the law
professors' prima facie case against the decision is at best a caricature.
Consider first the gross oversimplification in the charge that Bush v. Gore
violated the majority's core jurisprudential commitments. The Supreme Court's
conservatives have indeed shown a commitment to ruling generally on the basis
of explicit textual statements and well-settled precedents rather than abstract
values thought to be implicit in the constitutional text and previous opinions.
These conservatives have also displayed an instinct to avoid unnecessarily interfering
in state court matters, and a readiness to recognize zones of state authority
in which Congress is forbidden to tread. The solicitude for state power is
particularly visible in habeas corpus litigation, where the Court has been
increasingly reluctant to allow federal courts to second-guess state
convictions. It can also be seen in the Court's insistence that Congress's
power to regulate interstate commerce has limits, and in its expansive
interpretation of state immunity against suits conferred upon state governments
by the 11th Amendment. However, the majority's federalism is scarcely
recognizable in the crude version of it that law professors constantly invoke
against Bush v. Gore.
In no sense does the modern conservative vision of federalism contend that
state action--including state court action--is not subject to federal court
review for compliance with the federal Constitution. In fact, the conservative
justices often vote to reverse state supreme court
holdings on grounds that they offend federal constitutional imperatives. Only
six months before Bush v. Gore, the same U.S. Supreme Court majority
reversed the New Jersey Supreme Court's decision that the Boy Scouts could not
discriminate on the basis of sexual orientation. The state court had held that
the Boy Scouts were a public accommodation within the meaning of a state
anti-discrimination law; the Supreme Court said that the law, so interpreted,
violated the Boy Scouts' First Amendment right of expressive association. The
parallel with Bush v. Gore is exact: The Supreme Court invalidated a
state court interpretation of state law on the ground that what state law
required offended the federal Constitution.
Nor is it true that the Court's conservatives were uniformly hostile to
applying the equal protection clause to strike down state actions before Bush
v. Gore. In a series of voting rights cases beginning with the 1993
decision in Shaw v. Reno, the same five justices relied on the equal protection
clause to strike down legislative districting schemes motivated primarily by
racial considerations. The conservative justices have also used the equal
protection clause to rein in affirmative action programs. To be sure, the
conservative interpretation of this clause is different from the liberal one,
and in critical respects it is less expansive. It still serves, however, for
the conservatives as a constraint on state action, and it is by no means
obviously inconsistent with the holding the Court majority issued in Bush v.
Gore.
In addition, Chief Justice Rehnquist's concurring opinion, which argued that
the Florida court changed the
state's election laws in violation of Article II, section 1 of the
Constitution, has been criticized as hypocritical. Conservatives, the criticism
goes, profess to respect state court holdings on state law, yet in this
instance the chief justice--and Justices Scalia and
Thomas, who joined him--dissected the Florida
court's interpretation of Florida's
election statutes. Again, however, conservatives, and certainly the Court's
three most conservative justices, do not argue that the deference owed to state
courts on matters of state law entitles states to violate the federal
Constitution. From the conservatives' point of view, Article II, section 1 of
the Constitution, which declares that a state shall appoint presidential
electors "in such manner as the legislature thereof may direct,"
provides an explicit textual obligation on the part of the state courts to
interpret--rather than rewrite or disregard--state law concerning presidential
elections.
The willingness of the conservatives to review state supreme
court interpretations of state law is particularly evident in cases
involving the takings clause of the Fifth Amendment, which forbids government
seizures of private property without just compensation. In 1998, for example,
the Court ruled that interest on clients' money held by their lawyers
constituted "private property" for purposes of the takings clause.
This contradicted the view of Texas
property law taken by the Texas Supreme Court, which had promulgated a rule
under which interest from trust accounts was used to pay for counsel for
indigents. In another case, the Court said it reserved the right to examine the
"background principles of nuisance and property law" under which a
state supreme court determined that the state can
restrain uses of private property without compensating property owners. In one
case, Justices Scalia and O'Connor even dissented
from a denial of certiorari on grounds that the Court should not be too
deferential to state court interpretations of state law in takings matters.
"As a general matter," Justice Scalia
wrote, "the Constitution leaves the law of real property to the States.
But just as a State may not deny rights protected under the Federal
Constitution through pretextual procedural rulings .
. . neither may it do so by invoking nonexistent rules of state substantive
law." The opinion in Bush v. Gore is based on the same principle:
While the Court owes great deference to the Florida Supreme Court's view of Florida
law, that deference ends where federal law requires
the Court to ensure that state supreme courts have reasonably interpreted state
law.
The larger point is not that the majority opinion and concurrence in Bush v.
Gore were perfectly consistent with the conservatives' judicial philosophy.
Whether they were is debatable. As we have noted, there is certainly something
unexpected in the majority's willingness to expand equal protection doctrine
and in the concurring justices' novel Article II argument. But noting those
oddities, and appreciating the novel circumstances in which they arose, should
be the start of the discussion, not the end of it.
Consider next the accusation that in Bush v. Gore the conservative
majority was driven by a self-interested political motive: A conservative
president would appoint like-minded jurists to the Supreme Court. The critics'
failure to properly engage the Court's reasoning suggests that partisan
corruption on the justices' part was not the scholars' sad conclusion, as they
claim, but rather their operative premise from the beginning. But it is a
dogmatic and dangerous premise, especially for intellectuals engaged in shaping
public opinion. For one thing, it obviates the need for careful evaluation of
legal arguments, converting them, before examination, from reasons to be
weighed and considered into rationalizations to be deflected and discarded. And
the premise is easily turned against its user. It is not difficult to identify
potent partisan interests driving the scholarly critics of Bush v. Gore.
Many were stalwart supporters of the Clinton
administration, and many keenly favored Gore for president. Were Gore
appointing federal judges, many would have significantly improved their chances
of placing their students in prestigious judicial clerkships, as well as of
disseminating their constitutional theories throughout the judiciary.
Consider finally the prediction that Bush v. Gore would gravely damage
President Bush's and the Court's own legitimacy. That claim is subject to
empirical testing. And the tests prove it false--that is, if legitimacy is
regarded as a function of public opinion. By April 2001, after his first 100
days in office, President Bush enjoyed a 63 percent overall approval rating in
a Washington Post-ABC News poll. In response to the question "Do you
consider Bush to have been legitimately elected as president, or not?"
fully 62 percent answered affirmatively. That was actually a small increase
over the 55 percent who regarded Bush's election as legitimate in the immediate
aftermath of the Court's decision. Bush's popularity will wax and wane like any other president's, but he does not seem to
have legitimacy problems.
Nor has the Court itself fared badly in the public's eye. The Pew
Center for the People and the Press
has been measuring the Court's approval rating since 1987. In that time, the
rating has fluctuated from a low of 65 percent in 1990 to a high of 80 percent
in 1994. In January 2001, the Court's favorability rating stood at 68 percent.
Three months later, it stood at 72 percent. More interestingly, the Court was
viewed favorably by 67 percent of Democrats.
The continued high opinion of the Supreme Court is consistent with other
surveys that straddle the date of the Court's action. The Gallup Organization,
for example, asked people immediately after the decision how much confidence
they had in the Court. Forty-nine percent of Americans had either "a great
deal" or "quite a lot" of confidence, up slightly from the 47 percent
who expressed such confidence the previous June. Both the Pew and Gallup
polls suggest that the partisan composition of the support changed somewhat
following the Court's action, with Democratic confidence declining and
Republican increasing. That shift, however, does not constitute a national
legitimacy crisis, any more than conservative disaffection with the Warren
Court did during the 1960s. The Court has enjoyed
a remarkably stable level of public confidence and trust over a long period of
time.
The academics worrying themselves about the crisis of the Court's legitimacy
present as a sociological claim what is really normative criticism: The Court
deserves to lose the public's confidence, or, put differently, as a result of Bush
v. Gore the Court has lost legitimacy in the eyes of the majority of
academic pundits (namely, themselves) whom the public ought to follow. The Rehnquist
Court's "loss" of legitimacy among
leading constitutional theorists might be more troubling if it had ever enjoyed
such legitimacy. But despite all the expressions of concern for the Rehnquist
Court's standing following its December fall from
grace, it is hard to find any evidence that the Court's more prominent
scholarly critics ever held it in much esteem. Sunstein,
whose writings on the Court reflect a complicated relationship, is an
exception. But Ackerman and Dworkin certainly are
not. Even before Bush v. Gore, their work dripped with disdain for the
conservative majority, whose legitimacy they discovered only when they felt at
liberty to say that it had been lost for good.
*
Bush v. Gore was a hard case. The Court confronted novel and
difficult legal questions, both parties made plausible arguments, the political
stakes loomed large, partisan passions ran excruciatingly high, and the
controversy deeply implicated fundamental concerns about justice and democratic
self-government. Reasonable people may differ over whether Bush v. Gore
was correctly decided. But the charge that the decision is indefensible is
itself indefensible. That this untenable charge has been made by legal scholars
repeatedly and emphatically, and with dubious support in fact and law, is an abuse of authority and a betrayal of trust. If
scholars do not maintain a reputation for fairness and disinterestedness, their
own legitimacy may well suffer grievously in the eyes of the public, and so
could American democracy.
When scholars address the public on matters about which they are expert, the
public has a right to expect that the scholars' reason, not their passion, is
speaking. Because liberal democracy is grounded in the rule of law, and because
law is a technical discipline--the resolution of whose cases and controversies
often involves the interpretation of arcane statutes, the mastery of voluminous
case law, the understanding of layers of history, and the knowledge of
complicated circumstances--the public is particularly dependent on scholars for
accurate and dispassionate analysis of legal matters. Those scholars who assume
the office of public intellectual must exercise a heightened degree of care and
restraint in their public pronouncements.
Scholarly restraint--so lacking in the aftermath of Bush v. Gore--is
indeed compatible with lively participation by scholars in democratic debate.
By putting truth before politics, out in public as well as inside the ivory
tower, scholars make their distinctive contribution to that precious public
good, reasoned and responsible judgment.
PETER BERKOWITZ teaches at George Mason University School of Law and is a
contributing editor at The New Republic.
His book Virtue and the Making of Modern Liberalism was recently
published in paperback. BENJAMIN WITTES is
a member of the Washington Post’s editorial page staff. His book Starr: A Reassessment is
forthcoming from Yale University Press.