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Karlan's Court: Ten Years After Bush v. Gore

Citation

Publication Date: 
January 11, 2011
Format: 
Op-Ed or News Article
Bibliography: Pamela S. Karlan, Karlan's Court: Ten Years After Bush v. Gore, Boston Review, January/February 2011.

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Ten years ago the Supreme Court stepped in to decide the presidential election. The Court halted Florida’s recount and announced that the state’s method of reviewing ballots violated the equal protection clause of the Fourteenth Amendment. Although the Justices had found a constitutional violation, they weren’t interested—as the Court’s unsigned 2000 opinion in Bush v. Gore made clear—in vindicating equality more broadly. Their decision, they wrote, “is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

The Court’s interest in leveling the political playing field waned as quickly as it waxed. Since Bush v. Gore, the Court has consistently refused opportunities to make the electoral process fairer. Consider gerrymandering: nothing makes ballots more worthless than having the election results foreordained by sitting politicians’ artful jiggering of the district lines. Yet the Supreme Court has refused to do anything about the increasingly aggressive and sophisticated means by which officeholders pick their constituents rather than the other way around. Moreover, the Court has turned a purported concern with voter chicanery into a green light for draconian voter-identification laws, despite virtually no evidence of voting fraud perpetrated through impersonation of registered voters at the polls. The Court also has responded to the Voting Rights Act—Congress’s most notable and successful attempt to promote equality within the political process—by adopting the narrowest possible construction of the Act and expressing skepticism about its constitutionality. Most notoriously, the Court has dismissed the very idea that equalizing chances for political influence is a legitimate value when it comes to campaign-finance regulation.

But Bush v. Gore casts a shadow far beyond the Court’s election-law docket. At the time of the decision, many observers—including Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer in dissent—warned that the Court might lose the nation’s confidence in its role as an impartial guardian of the law. That didn’t happen, but the Court apparently did gain a disturbing degree of confidence in itself. Having decided in 2000 that Congress could not be trusted to have the final word in the presidential election—even though the Twelfth Amendment establishes Congress, not the Supreme Court, as the ultimate arbiter—a number of justices have been making a habit of expressing distrust for Congress in other areas.

Full Text of Publication

Ten years ago the Supreme Court stepped in to decide the presidential election. The Court halted Florida’s recount and announced that the state’s method of reviewing ballots violated the equal protection clause of the Fourteenth Amendment. Although the Justices had found a constitutional violation, they weren’t interested—as the Court’s unsigned 2000 opinion in Bush v. Gore made clear—in vindicating equality more broadly. Their decision, they wrote, “is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

The Court’s interest in leveling the political playing field waned as quickly as it waxed. Since Bush v. Gore, the Court has consistently refused opportunities to make the electoral process fairer. Consider gerrymandering: nothing makes ballots more worthless than having the election results foreordained by sitting politicians’ artful jiggering of the district lines. Yet the Supreme Court has refused to do anything about the increasingly aggressive and sophisticated means by which officeholders pick their constituents rather than the other way around. Moreover, the Court has turned a purported concern with voter chicanery into a green light for draconian voter-identification laws, despite virtually no evidence of voting fraud perpetrated through impersonation of registered voters at the polls. The Court also has responded to the Voting Rights Act—Congress’s most notable and successful attempt to promote equality within the political process—by adopting the narrowest possible construction of the Act and expressing skepticism about its constitutionality. Most notoriously, the Court has dismissed the very idea that equalizing chances for political influence is a legitimate value when it comes to campaign-finance regulation.

But Bush v. Gore casts a shadow far beyond the Court’s election-law docket. At the time of the decision, many observers—including Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer in dissent—warned that the Court might lose the nation’s confidence in its role as an impartial guardian of the law. That didn’t happen, but the Court apparently did gain a disturbing degree of confidence in itself. Having decided in 2000 that Congress could not be trusted to have the final word in the presidential election—even though the Twelfth Amendment establishes Congress, not the Supreme Court, as the ultimate arbiter—a number of justices have been making a habit of expressing distrust for Congress in other areas.

There has seldom been a Court so sure of itself relative to the political branches of the federal government. Perhaps that comes from the narrowness of the justices’ experience with those branches. In contrast to the Court that decided Brown v. Board of Education—which boasted a former governor, several former members of Congress, and a number of high executive-branch officials—today’s Court is far less diverse when it comes to government experience (even if it is more diverse with respect to race and gender). Not a single member of the current Court has been elected to public office. Before Justice Elena Kagan’s appointment, every sitting justice had come directly from a federal court of appeals. John Roberts, the current chief justice, likes it that way; in 2009 he claimed this judicial background meant the Court’s “method of analysis and argument [has] shifted to the more solid grounds of legal arguments” and away from “a policy perspective.”

The longest-term effect of Bush v. Gore may be on the composition of the Court itself. George W. Bush made two appointments to the Court: one when Chief Justice William Rehnquist died and another when Justice Sandra Day O’Connor retired. If his two picks—Chief Justice Roberts and Justice Samuel Alito—remain on the Court until they are the age of Justice Stevens when he retired last year, they will each be serving until the 2040s. No other legacy of the Bush years—save, perhaps, our staggering national debt and the war on terrorism—is likely to be so enduring.

To get a sense of how transformative those appointments already have been, we need only look at some of the cases where the substitution of Justice Alito for Justice O’Connor may have changed the bottom line.

Abortion. In 2000 the Supreme Court, by a 5-4 vote with Justice O’Connor in the majority, struck down a Nebraska statute that barred particular abortion procedures. The Court held that the law failed to include a required exception permitting the procedures when necessary to preserve a woman’s health. In 2007 the Court upheld a nearly identical federal statute, again by a 5-4 vote.

Campaign-finance regulation. In 2003 Justice O’Connor joined a 5-4 majority to uphold the McCain-Feingold campaign-finance law against a constitutional challenge. In 2010, again by a 5-4 vote, the Court struck down parts of the law in a sweeping decision that threw out a longstanding ban on independent electioneering expenditures by corporations.

Racial integration. In 2003 Justice O’Connor wrote the Court’s opinion in a 5-4 decision upholding the efforts of public educational institutions (in that case, the University of Michigan Law School) to create diverse student bodies by considering race in admissions decisions. In 2007 the Court struck down decisions of popularly elected school boards in Seattle and Louisville, which sought to integrate public schools by accounting for race in pupil assignments. The vote was 5-4.

Sex discrimination in employment. In 1987 Justice O’Connor (the first woman to hold the job of Supreme Court Justice) was in the majority in a 6-3 decision upholding an affirmative action plan designed to give women access to nontraditional jobs. In 2007—by a 5-4 vote, with Justice Alito writing the Court’s opinion—the Court restricted the ability of Lilly Ledbetter, one of the few female managers at a manufacturing plant, to bring suit challenging that she was paid significantly less than her male counterparts.

But the substitution of Chief Justice Roberts and Justice Alito for Chief Justice Rehnquist and Justice O’Connor was not the main effect of Bush v. Gore. Rather it was possibly to substitute them for two unknown and unknowable nominees of a Democratic president. On such a Court, the generally conservative Justice Anthony Kennedy would not be the swing vote, as he is today on a number of the most important issues before the Court. Instead those two more moderate—or even, dare we hope, liberal?—justices might form a voting majority along with Justices Sonia Sotomayor, Ginsburg, Breyer, and Kagan. That Court might be more committed to equality, to individual litigants’ access to the justice system, and to a host of other constitutional claims than the Court that Bush v. Gore produced.,