Laurence H. Tribe, eroG .v hsuB and its Disguises: Freeing Bush v. Gore from its Hall of Mirrors, 115 Harv. L. Rev. 170 (2001).
Abstract: My objective in this essay is to dispel the suspicion that Florida's highest court played fast and loose with the state's election statutes, while showing that in Bush v. Gore the U.S. Supreme Court acted in a manner wholly inconsistent with its constitutional responsibilities, whether viewed in terms of equal protection and due process or in terms of Article II; that the U.S. Supreme Court had no warrant to interfere with the political process as it did; but that its having done so was sadly of a piece with much that the Court has done in recent years. Part I sets the stage with a description of the lawsuits that culminated in Bush v. Gore. Part II demonstrates that the entire Article II issue that has so fascinated many commentators is a red herring and that observers on both sides have conjured an Article II problem where none really exists. Part III explains that the failing of the Chief Justice Rehnquist's concurring opinion for himself and Justices Scalia and Thomas is not that it asked an inadmissible Article II question, but that it gave an indefensible answer. Far from changing, breaking, or even bending anything in state law, the Florida Supreme Court was adhering faithfully to both the letter and the spirit of the statutory scheme that the Florida Legislature put in place and made applicable to presidential elections pursuant to its duty under Article II, Section 1, Clause 2. The image of a partisan state court run amok, which seemingly drove the Court's majority and continues to haunt its defenders, dissolves under close analysis, leaving in its place the straightforward picture of a workmanlike judicial tribunal doing its best, under trying and unprecedented circumstances, to apply an admittedly imperfect set of election rules. In light of the Florida legislature's acceptance of judicially supervised partisan struggle as a way to facilitate democratic choice; its explicit declaration that election officials are presumed to tabulate votes fairly in that partisan environment; its unequivocal embrace in 1999 of an increasing number of election contests and, thus, of more manual recounts; and its overwhelming preference for standards over rules in the election context, it is not the resolution of the Florida Supreme Court, but instead the model of resolution Chief Justice Rehnquist advances, that would have required the Florida courts to depart from the legislative scheme. Part IV demonstrates that the majority's equal protection holding invalidating the Florida court's remedial recount is completely without merit. The Court's "one person, one vote" doctrine cannot be understood to support the Court's substantive decision - at least, not without calling into question the constitutionality of the way votes have been counted in numerous statewide elections in our nation's history, including, most importantly, the official count of the votes in Florida that was certified by the Florida Secretary of State as a result of the Court's intervention in Bush v. Gore itself. Nor can the decision be explained by any newfangled equal protection doctrine, or by reference to procedural or substantive due process. Therefore one cannot escape the conclusion that Bush v. Gore rests on about nothing more than the simple intuition of a majority of the Court that Florida's procedures for deciphering ballots, common though they may be, just won't do because they offend the Court's own notion, more aesthetic than constitutional in character, of how ballots should be tabulated. Much of the remainder of the article is devoted to addressing the possible sources of the Court's unease about the "intent of the voter" standard under which similar looking ballots might be interpreted differently at different times and places, and demonstrating that the Court's unease either is constitutionally unwarranted or, if warranted, would point not to ending the recount but to invalidating the entire election, certainly in Florida and perhaps throughout the nation. The Court added insult to injury by denying the State of Florida the opportunity to remedy the defects that the Court identified - and, remarkably, the Court did so through an indefensible reading of Florida's own state law, which the Court implausibly claimed the Florida Supreme Court had construed to require an end to the vote - counting less than two hours after the Court issued its decision. Nothing in One can read the Florida statutes backwards and forwards without finding even the slightest clue that the state legislature ever decided that all recounts in a contested presidential election must stop by December 12 - at whatever cost. Worse still, reading the laws of Florida, as the Court did, to mandate this purchase of electoral security at the price of tossing out into the sea thousands of ballots, many of which clearly expressed the intent of the voters who cast them, would by the Court's own lights have been flatly unconstitutional. Part V shows that the Bush challenge to the recount presented a political question for resolution by Congress rather than a justiciable question for an Article III court. A court ordinarily need not and should not decline from considering a pre-election constitutional challenge to a state system for conducting presidential elections; but challenges to a state's actions in the course of a particular presidential election - challenges like this one that reach the Court so close to the election that it appears no decision other than one stepping on Congress's Twelfth Amendment toes seems possible - should be regarded as nonjusticiable. The Bush v. Gore Court simply but mistakenly took for granted its authority to weigh in and essentially to decide the presidential election. Moreover, the Court's stretching of the constitutional fabric was not necessary to protect the nation itself from being torn apart. Part VI explains why my critique of the Supreme Court's holdings does not presume partisan motives, arguing that what the Court did is perfectly understandable in terms of several unfortunate pathologies generally manifested in its recent jurisprudence. This Court exhibits a regrettable staggering belief that it alone is capable of confidence in its own ability to define and prioritize values of constitutional magnitude and decide which measures are needed to realize those values. High on that list of values is the preservation of a stable political order and of an appearance of regularity. Low on that list is an energized, politicized, unruly electorate struggling to find its way toward concrete outcomes in such forms as the election of a president. The Court's self-confidence in its own infallibility in matters constitutional is matched only by its disregard for the meaningful participation of other actors in constitutional debate. As many of the Court's recent decisions have demonstrated, the Justices in the Bush v. Gore majority have little but disdain for Congress as a serious partner in the constitutional enterprise, and not much patience with "We the People" as the ultimate source of sovereignty in this republic. Part VII discusses comments on the exceptionality of Bush v. Gore. Finally, Part VIII draws some lessons for the future, concluding that the real challenge is not to strip the Justices of their power but to expose and erase the flawed vision of our Constitution that has animated so many of their recent decisions and to reinvigorate the work of democracy in a way that can give the lie to that vision, inspiring the successors of today's Justices, if not them, to join in a more noble constitutional venture.