Campbell Corner Language Exchange
v. Gore: Whither Art The Rule of Law?
Courts and Politics
given December 3, 2001 at Princeton University
by The Honorable Martin Feldman,
Judge of the U.S. District Court, Eastern District
Thank you to Robert P. George and
James Madison Program in American Ideals and
Institutions at Princeton University
for permission to post this lecture.
am grateful and honored to have been invited
to give the James Madison Lecture here at Princeton,
an institution for which I’ve always had a special
affection. As a student of the Founders
and the Founding period, I’ve had a kind of
mystical attachment to Princeton through Madison,
whose formative years were spent here.
Federalist 10, Madison writes with anxiety of
what he calls “the violence of faction,” which
he defines as “a number of citizens, whether
amounting to a majority or minority of the whole,
who are united and actuated by some common impulse
of passion, or of interest, adverse to the rights
of other citizens, or to the permanent and aggregate
interests of the community.”
have chosen for this lecture to speak to the
recent condemnations of the Supreme Court Justices
who voted in the majority of Bush v. Gore
and who have been factionally denounced as betrayers
of the Rule of Law. It is my belief that
such accusations are unfounded, and can be said
to justify Madison’s fear of the violence of
of the Criticisms of Bush v. Gore
predominant criticism of Bush v. Gore
is that it represents a blatant power grab—the
selection of George W. Bush as president—by
five Supreme Court Justices in violation of
the Rule of Law, and motivated by their self-interested
political preferences. The advocates of
this theory are numerous, and come from the
ranks of the academy, the press, and even the
dissenting members of the Court itself.
In fact, the most accusatory expression of this
sentiment is found in Justice Stevens’ dissent,
where he claims that “the identity of the loser
[in the presidential election] is perfectly
clear. It is the Nation’s confidence in
the judge as an impartial guardian of the rule
A scathing indictment that
should focus everyone's notice. The issue,
then, is whether Bush v. Gore was the
result of an interpretation of law, or personal
is important to say that Bush v. Gore
is the latest installment in a larger, centuries-old
debate about the Rule of Law, and specifically
about whether law is anything more than veiled
politics. Jeremy Bentham attacked Sir
William Blackstone by attempting to demonstrate
exactly what the modern-day Legal Realists claim:
that judges act as political creatures and nothing
more. Judge Richard Posner, in his The
Problems of Jurisprudence, identifies this
same debate as far back as Sophocles' Antigone.
Judge Posner summarized the sides of the debate
as follows: “One contends that law is
more than politics and in the hands of skillful
judges yields, at least at certain times, in
stable conditions—correct answers to even the
most difficult legal questions. The other
contends that law is politics through and through
and that judges exercise broad discretionary
second but related criticism of Bush v. Gore
is that some or all of the five the so-called
“conservative” justices in the majority abandoned
their usual philosophical principles regarding
federalism and the dignitary interests of states
in handing the election to their favored candidate.
Because this criticism of the case is in my
view unfair, derivative of the rule-of-law arguments,
impossible to prove true or false, and usually
devolves into needless ad hominem attacks
on particular justices, I will address it later
in my remarks. But, first principles first:
What is this thing we so dutifully, almost theologically,
worship as "The Rule of Law?”
That, he said, is the "ruling principle
of American freedom, the source of our democratic
liberties.” It is incomplete to evaluate
the merits of the principle criticism of Bush
v. Gore without first coming to a fuller
understanding of what is meant by "the
Rule of Law." This requires a very
brief and perhaps unsophisticated survey of
several theories of jurisprudence that created
and modified the concept of the "Rule of
The Rule of Law in the classical sense involved the belief that there are eternal,
accessible, and suprapolitical principles that
underlie and animate the positive law.
These principles are informed by natural law,
they are common to all civilized societies,
and hence, universal.
The natural law produced powerful concepts of
justice, such as equity.
The theory of natural law held that the role
of judges and lawyers should be that of finding
or discovering the natural law, and then applying
it to any given situation. Further, it
instructs that judges should reject man-made
laws that do not comport or fit with the natural
law. The work of judges involved little
personal discretion, thus placing the Rule of
Law above the rule of men. Finally, there
was a focus on the formality of the process
of discovering and applying the natural law.
Lawyers and judges had to be specially trained
to penetrate the common law and reveal its underlying
Perhaps the most influential adherent to the theory of the natural law was the
revered British commentator Sir William Blackstone,
who, in his Commentaries on the Laws of England,
attempted to synthesize and rationalize English
common law. Blackstone pictured the common
law as a transcendent entity, calling judges
Blackstone defined the Rule of Law as the vindication of rights through adjudication.
British scholar A.V. Dicey, in his Introduction
to the Study of Law of the Constitution,
identified three crucial characteristics of
the Rule of Law:
First, “the absolute supremacy or predominance of regular law as opposed to
the influence of arbitrary power, and exclud[ing]
the existence of arbitrariness, or prerogative,
or even of wide discretionary authority on the
part of the government.”
Second, “the equal subjection of all classes
to the ordinary law of the land administered
by the ordinary Law Courts.”
Third, the general principles of the Constitution
are the “result of judicial decisions determining
the rights of private persons in particular
cases brought before the Courts.”
Alexis de Tocqueville considered the Rule of Law to be a peculiarly British
and American notion. One commentator explained
Americans' reverence for the Rule of Law as
follows, “In a nation lacking either an established
order or an established church to produce the
social cement of legitimate authority, from
the beginning Americans turned the rule of law
into a ‘civil religion.’”
Thomas Paine explained that “[I]n absolute governments,
the king is law, so in free countries the law
ought to be king; and there ought to be no other.”
Justice Scalia has noted that the concept of
the Rule of Law, and not of the whim of the
sovereign, goes back at least to Aristotle,
who stated, “Rightly constituted laws should
be the final sovereign; and personal rule. .
.should be sovereign only in those matters on
which law is unable, owing to the difficulty
of framing general rules for all contingencies,
to make an exact pronouncement.”
The idea of the natural law was intertwined with actual religious belief inasmuch
as God was generally considered the ultimate
source of the natural law. This eventually
became the subject of dispute, especially with
the ascendancy of Darwinism, and scholars scrambled
for new theories. In the late nineteenth
century, Christopher Columbus Langdell, the
dean of Harvard Law School, popularized the
theory that discovering the law was a scientific
endeavor. Langdell published the first
modern law school casebook with the idea that
students should read many many cases, and from
them divine the underlying legal principles.
From the Rule of Law perspective, it is important
to note that Langdell and his followers still
believed that there were immutable principles
to be found in those vast volumes of cases,
regardless of whether they were handed down
by God or arose from the necessities of humankind.
A key feature of this reasoning from universal legal principles was that it
implied that there were right and wrong answers
to legal questions. Furthermore, both
Blackstone and Langdell placed a premium on
process. Discovering the law was akin
to the scientific method, and fidelity to the
reasoning process was the key to confining judicial
This brand of process-oriented formalism was repugnant to Oliver Wendell Holmes,
Jr., who ushered in a new era in legal
thought with his book The Common Law.
The ascendancy of Holmes represents the eclipse
of the Rule of Law in the traditional sense.
Holmes rejected the idea that there were pre-existing
principles of justice that could be discovered
and applied. Rather, the law was what
judges said it was. Whether a decision
was good or bad, perhaps even right or wrong,
depended upon what outcomes it produced in terms
of human behavior. Thus, judges should
not be in the business of asking what the law
is, but what it should be.
Unlike many who would come later, Holmes was
not overly cynical about the law. He saw
the law and the judges who pronounce it as masterful
facilitators of positive social change.
Nevertheless, Holmes regarded judges as a particular
species of politician, a far cry from Blackstone's
oracles of the law.
Those who followed Holmes became known as Legal Realists, and assumed that law
is merely dressed-up politics. All the
various postmodern and critical legal studies
theorists ("crits") saw the law as
the interplay between various power relationships,
and they often sought to demonstrate that the
law was most often a tool for the oppression
of minorities, women, or other disfavored groups
This was, of course, part of the larger postmodern
social theory, which held that there is no absolute
Truth, only many culturally and individually
contingent truths. The postmodernists
flatly rejected the possibility of any universal
set of legal rules that can govern all people,
regardless of social position and culture.
To these legal nihilists, judges merely followed,
consciously or unconsciously, their own political
or philosophical beliefs and biases. Because
they are human, judges are incapable of impartiality.
Because the tools of legal reasoning, and the
language of the law itself, are so malleable,
the law is hopelessly indeterminate.
With this cynical understanding of what the law is and what judges do, the question
becomes what to do about it. In particular,
scholars sought ways to limit judicial discretion.
One major response to this assumption that law
is merely politics dressed-up, is that the law
should do as little as possible. Judges,
realizing that they cannot keep their biases
out of it, should use their power as little
as possible, presumably deferring to other institutions.
This was the thesis of Alexander Bickel in The
Least Dangerous Branch, from which Justice
Breyer quotes favorably in his dissent in Bush
v. Gore for the proposition that the Court
should have refused even to adjudicate the case.
Rather than do as little as possible, the crits
seemed to suggest that judges should interpret
the law to respond to the particular cultural
or social contexts. It is unclear exactly
what this means, or what real guidance it gives
Because Legal Realists, postmodernists, and crits do not really believe that
the Rule of Law is possible, there is no defense
of Bush v. Gore on their terms.
Rather, the debate over whether Bush v. Gore
was consistent with the Rule of Law assumes,
as I do, that there is such a thing, with
right and wrong answers to the legal issues
that the case presented. And any defense
of Bush v. Gore can rightly focus on
whether or not the Court got it right as a matter
of law. Moreover, the rightness or wrongness
of Bush v. Gore depends on the answers
to two questions: First, "Should
the Court have heard the case?"; and second,
"Having taken the case, did the Court apply
the law correctly to the facts?"
But, it is my belief that the more voguish political-bias
criticisms are unfounded.
Court Fidelity to the Rule of Law
Fortunately, American jurisprudence does endorse the concept of the Rule of
Law. That is, the law believes in itself.
And judges have over time handed down numerous
expressions and explanations of what the Rule
of Law is and what it requires of us.
The recurring phrase in Supreme Court opinions that sanctifies the Rule of Law
in our democracy is that our nation is “a government
of laws and not of men.” This phrase comes
from Article XXX of the Massachusetts Constitution
of 1780, written by John Adams, which reads,
“In the government of this Commonwealth, the legislative
department shall never exercise the executive
and judicial powers, or either of them: The
executive shall never exercise the legislative
and judicial powers, or either of them: The
judicial shall never exercise the legislative
and executive powers, or either of them: to
the end it may be a government of laws and not
language, copied by many other state constitutions,
enshrines the principle that the separation
of powers, the checks and balances, are the
mechanisms for securing the law against the
encroachments of power politics.
Justice Brennan observed that “[t]he principle that our government shall be
of laws and not of men is so strongly woven
into our constitutional fabric that it has found
recognition in not just one but several provisions
of the Constitution.”
Indeed, this maxim has been invoked to explain
why the Constitution forbids laws that are so
vague that they do not put citizens on notice
of what is prohibited.
The concept of the Rule of Law is also at the
heart of the Due Process Clause. The Court
[Justice Frankfurter] once noted that “the history
of liberty has largely been the history of observance
of procedural safeguards.”
The great Justice John Marshall first brought this venerable doctrine into federal
constitutional jurisprudence in the landmark
case of Marbury v. Madison, when he stated
that our government would cease to be a government
of laws, and not of men, “if the laws furnish
no remedy for the violation of a vested legal
This echoed Blackstone’s Commentaries, which
described the “general and indisputable rule,
that where there is a legal right, there is
also a legal remedy, by suit or action at law,
whenever that right is invaded.”
Indeed, it is in this context, where the violation
of a constitutional right demands that the Court
provide a remedy, that the Court most often
invokes the Rule of Law. It is this fundamental
principle of our jurisprudence, that no violation
of rights should be without some possible legal
remedy, that makes it odd for the Court’s detractors
to suggest that the provision of a remedy in
Bush v. Gore violated the Rule of Law.
[Not to get too far ahead of the argument, but
in Bush v. Gore, seven justices determined
that the Florida court-ordered recount violated
equal protection and implicated principles of
fundamental fairness. By definition, the
Rule of Law directs courts to remedy the violation
of individual rights by the State.]
On November 7, 2000, or rather early in the morning on November 8, and after
the media had twice called the outcome of the
election and then recanted, George W. Bush led
in Florida, but only by a few hundred votes.
Al Gore initially conceded the election to Bush,
but later retracted his concession because of
the small margin by which Bush led. By
November 9, 2000, the count in Florida had Bush
leading by 1,784 votes. Because of the
small margin, however, a mandatory machine recount
was ordered in all 67 counties in Florida.
After the machine recount, Bush led the
vote by 327 votes. Al Gore then requested
manual recounts in Miami-Dade, Broward, Palm
Beach and Volusia counties where there had been
disputed ballots. Manual recounts
began in three of the four counties. (Miami-Dade
did not decide to do a recount until several
The Florida Secretary of State, Katherine Harris, who was administratively responsible
for certifying the Florida votes,
determined that all recounts had to be completed
by November 14. Because two counties failed
to meet the deadline, Harris refused to include
the results from those counties in the statewide
certification. Gore challenged this decision
in the Leon County Circuit Court.
While the trial court found that Harris had
acted within her discretion, the Florida Supreme
Court unanimously held that Harris' actions
were contrary to Florida Law and extended the
deadline until November 26.
Bush appealed this ruling to the United
States Supreme Court (Bush I). Meanwhile,
on November 26, 2000, Harris certified Bush
as the winner in Florida by 537 votes.
On December 4, 2000, the Supreme Court issued
a unanimous per curiam opinion vacating the
Florida Supreme Court's decision to extend the
certification deadline to November 26 and instructing
the Florida Supreme Court to clarify its ruling.
The Florida Supreme Court, however, didn’t address
the remanded decision until after it ruled on
Gore's post-election challenge.
In ruling on Gore’s election contest, the Florida Supreme Court ordered a state-wide
recount of ballots which contained undervotes.
The court also ordered that the votes from incomplete
recounts be counted for Gore.
Bush again appealed the Florida Supreme Court's
ruling to the United State Supreme Court (Bush
II). On December 9, 2000, the Supreme
Court issued a per curiam order granting a temporary
stay of all recounts in Florida.
The Court held two days of oral argument, and
then, on December 12, 2000, it issued an unsigned
per curiam opinion holding that the Florida
Supreme Court ruling violated the Equal Protection
Clause of the Fourteenth Amendment to the United
States Constitution, and ordering that the state-wide
Thus, the end of the election and Bush was declared
Court Rulings - A Review
Palm Beach Canvassing
Board v. Harris
The litigation in the Florida courts began after Secretary of State Harris ruled
that any recounts requested by Gore had to be
completed within seven days of the election.
Under Florida law, any recount requested had
to be completed within seven days of the election
or by November 14.
Thus, Harris ruled that Gore's recounts had
to be completed by November 14, 2000.
Harris’ ruling was challenged in Leon County
Circuit Court. In that case, the Judge
Terry Lewis found that Harris acted within her
discretion and denied the request to extend
the recount deadline.
This decision was appealed to the Florida Supreme
Court. On November 21, 2000, the Florida
Supreme Court unanimously ruled that Harris
had abused her discretion and it extended the
certification deadline until November 26, 2000.
The next round of Florida litigation began on November 27, 2000, when Gore raised
his post-election challenge in Leon County Circuit
Court - the first formal contest ever in the
history of a presidential election. In
that proceeding, Gore challenged Harris’ certification
which did not include the recounts which did
not meet the November 26 deadline. The case
was assigned to Judge N. Sanders Sauls, who
rejected Gore’s election contest and request
for a count of more than 12,000 undervotes in
Palm Beach and Miami-Dade counties. In
rejecting Gore’s arguments, Judge Sauls stated
that there was “no credible statistical evidence
and no other competent substantial evidence
to establish by a preponderance of a reasonable
probability that the results of the statewide
election in the State of Florida would be different
from the result which had been certified by
the State Elections Canvassing Commission.”
Gore’s attorneys appealed Judge Sauls ruling
to the Florida Supreme Court. On
December 8, 2000, the Florida Supreme Court,
in a 4-3 split, reversed Judge Sauls’ ruling
and ordered a statewide recount of the undervotes
in all counties where a manual recount had not
This remedy was well beyond Gore’s request for
a manual recount of the 12,000 undervotes.
The court also ordered the trial court to add
to Gore’s tally approximately 383 votes that
had been excluded from the certified count.
Bush then sought an emergency stay of the Florida
decision in the United States Supreme Court.
While the United States Supreme Court considered
Bush’s case, the Florida Supreme Court
also upheld rulings by courts in Seminole and
Martin counties allowing recounts of absentee
The first ruling by the Florida Supreme Court was unanimous. The second
ruling however, was split 4-3. In a dissenting
opinion arguing that the majority’s ruling could
not withstand constitutional scrutiny, Chief
Justice Wells stated “the majority’s decision
to return this case to the circuit court for
a count of the under-votes from either Miami-Dade
county or all counties has no foundation in
the law of Florida...”
Justice Harding’s dissent, in which Justice
Shaw concurred, likewise focused on the constitutional
problems raised by the majority’s ruling.
Harding stated that he had “serious concerns
that appellant’s [Gore’s] interpretation of
[the Florida statute] would violate other voter’s
rights to due process and equal protection of
the law under the Fifth and Fourteenth Amendments
to the United States Constitution.
Litigation associated with this election did not only take place in the Florida
state courts. On November 11, 2000,
Bush filed a lawsuit in the United States
District Court in Miami to bar the canvassing
boards in Palm Beach, Broward, Miami-Dade and
Volusia counties from manually recounting the
ballots that were cast in these counties.
Bush asserted that it was “inconsistent with
both the Constitution and the public interest
for select county canvassing boards arbitrarily
to reopen the 2000 election in Florida for a
third time.” Bush further argued that
allowing a third recount would result in “a
standardless patchwork of ad hoc decision making”
that would ultimately undermine “the integrity
of the electoral process and the public confidence
in election results.”
In refusing to stop the manual recounts, Judge Middlebrooks found that the Florida
election process regarding manual recounts was
reasonable and non-discriminatory on its face
and was the type of “electoral law often upheld
in federal legal challenges.”
The court also stated that federal courts
should “tread cautiously” when potentially interfering
with state electoral processes and because Bush
did not show a clear deprivation of a constitutional
right or a fundamental unfairness in Florida’s
recount provisions, injunctive relief was not
In a parallel proceeding in the federal district court, a group of registered
voters sought injunctive relief to prevent the
canvassing boards in Volusia, Palm Beach, Broward
and Miami-Dade from proceeding with manual recounts.
Like Bush’s challenge in federal court, this
request for injunctive relief was denied.
In fact, Judge Antoon adopted the reasoning
of Judge Middlebrooks denying Bush’s request
to enjoin the canvassing boards from continuing
the manual recounts.
The rulings in both of these cases were appealed to the Eleventh Circuit Court
of Appeals. Both were affirmed.
In both cases, the Court of Appeals declined
to interfere with Florida’s election dispute
procedures. In a per curiam opinion, the
court stated: “[T]he State of Florida has enacted
detailed election dispute procedures.
These procedures have been invoked, and are
in the process of being implemented,
both in the form of administrative actions by
state officials and in the form of actions in
state courts, including the Supreme Court of
However, the dissenters to those opinions
found that the Florida election scheme was
The federal courts in Florida also heard a case involving the counting of absentee
In that case, a group of voters sued Florida
state election officials to prevent them from
accepting overseas absentee ballots that were
received after election day. Judge Paul
found in favor of the defendants and held that
the Florida statute requiring absentee
ballots to be received by 7:00 p.m on election
day conflicted with federal statutes guaranteeing
the right to vote of overseas armed forces,
and thus, was superceded by a Florida Administrative
Code rule allowing a ten day post-election window
for receipt of overseas ballots.
The plaintiff’s appealed the ruling
to the Eleventh Circuit, which affirmed the
district court’s ruling.
The Court of Appeals noted that “to read Florida’s
law as Plaintiffs ask us to do would be a significant
change in the actual election practices of Florida.
While Florida law seems to favor counting ballots,
this change would take away the votes of thousands
of Florida citizens - including members of America’s
armed forces on duty outside of the country
pursuant to the nation’s orders -- who, to cast
their ballots, just did what they were told
by Florida’s election officials.”
Court Decisions and How the State Supreme Court
Responded, or Failed to Respond
Arguments and briefs
before the United States Supreme Court
In Bush’s first appeal to the Supreme Court, he raised three issues for
review: 1) whether the Florida Supreme Court's
decision extending the deadline for certifying
the election to allow manual recounts violated
the Electoral Count Act, 3 U.S.C.§ 5;
2) whether the Florida Supreme Court had supplanted
the legislature's role in violation of Article
II, Section 1, Clause 2 of the United States
Constitution; and 3) whether the selective recounts
violated either Equal Protection or Due Process.
The Supreme Court granted certiorari on the
first two issues and denied cert. on the third.
In his second petition for cert., Bush raised
the same issues in his first petition.
However, the Equal Protection question addressed
the Florida Supreme Court's recount procedures.
of the Justices Who Split and Court's Involvement
in Social and Political Issues
In Bush I, the Court unanimously voted to vacate the Florida Supreme Court’s
order because of "considerable uncertainty
as to the precise grounds for the decision.”
It sent the case back to the Florida Supreme
Court with instructions to clarify whether it
had considered the constitutional or statutory
issues that might arise if it had changed the
state's rules for conducting recounts after
the fact. These instructions were never
followed by the Florida Supreme Court because
by the time the U.S. Supreme Court heard the
case, the election had already been certified
by the Secretary of State. In remanding
the case back to Florida Supreme Court, the
Court avoided deciding the more difficult Article
II question. The second appeal to the
Supreme Court concerned Gore’s post-election
challenge of the vote certification. However,
in Bush’s second appeal, the Supreme Court issued
a per curiam order granting a temporary stay
of all recounts in Florida. In Justice
Scalia’s concurrence in support of the stay,
he articulated the most troubling aspect of
the Florida Supreme Court’s decision when he
wrote: “Count first, and rule upon legality
afterwards, is not a recipe for producing election
results that have public acceptance democratic
On December 12, 2000, the Supreme Court issued an unsigned per curiam opinion
in which it held that the Florida Supreme Court’s
December 8, 2000 decision ordering a statewide
recount violated the Equal Protection Clause
of the Fourteenth Amendment and ordered the
recounts to cease.
Three Justices also found that the Florida
Supreme Court’s decision violated Article II,
Section 1, Clause 2 of the United States Constitution,
which gives the Florida legislature complete
power to decide the terms under which its electors
are to be chosen. Although the Justices
were split 5-4 over the remedy to be applied,
I should underscore that seven of the nine Justices
agreed that there had been an equal protection
Let me emphasize that this 7-2 split on the
equal protection violation is something that
is rarely acknowledged in commentaries critiquing
the decision. Critics of the Court
seem to prefer to focus on the 5-4 split and
the heated dissents in order to dress up the
ruling to appear politically motivated.
It is also noteworthy to mention that none of
the Justices actually defended the Florida Supreme
Court’s recount process.
Has the Supreme Court of the United States usurped the Rule of Law? I
don’t think so. One can argue whether
the Court got it right or wrong but that’s where
the criticism should stop.
Supreme Court and the Rule of Law
Other Decisions in
Which Conservatives and Liberal Justices Voted
Together Before and After Gore v. Bush
Shifting Coalitions: Record Refutes Claims of Bare Partisanship
As much as its critics seek to brand the Rehnquist Court as polarized and partisan,
with a five-vote conservative majority, the
current justices have often proven remarkably
difficult to predict. For so-called hard-liners,
they are pretty malleable when it comes to judging.
The current justices have shown a willingness
to shift their usual philosophical alliances
when they perceive that the law so requires.
Counsel who appear before the Court regularly
have stated that "[t]his is a court which
makes ad hoc decisions based on shifting coalitions."
To be sure, five of the justices believe that
the Court should strive to better protect the
states from encroachment by the federal government.
It is not unfair to say they are conservatives.
And the other four justices are admittedly more
solicitous of federal power. It is not
pejorative to say they are liberals. This
fundamental disagreement over the proper interpretation
of our constitutional structure has produced
a number of 5-4 decisions, some of which occasioned
harsh exchanges among the justices. [Incidentally,
it is refreshing that there are men and women
on this Court who have philosophies of constitutional
interpretation and structure.] But, it
is clear that the justices often follow the
law even when their personal political predilections
would commend to them an opposite result.
For example, in the recent case Kyllo v. United States,
Justice Scalia, joined by no less than
Souter, Thomas, Ginsburg, and Breyer, found
that police use of a thermal imaging device
to determine that Mr. Kyllo was growing marijuana
in his home constituted an unreasonable warrantless
search in violation of the Fourth Amendment.
Justice Scalia relied on his well-known method
of looking to the text of the Constitution and
the original meaning of the word "search"
to arrive at a result that would appear to contradict
his otherwise "conservative" leanings
in favor of law enforcement interests.
Moreover, Justice Stevens, commonly considered
one of the Court's stalwart liberals, wrote
a dissenting opinion supporting this expansive
police conduct. In United States v.
Justice Scalia sided with Justice Brennan in
striking down the federal Flag Burning Act because
it violated citizens' First Amendment right
to freedom of speech. Personally, Scalia
was not at ease with the decision he reached,
but reach it he did. Chief Justice Rehnquist
wrote the opinion in Dickerson v. United
which affirmed the requirement that law enforcement
officials read suspects the famous Miranda
warnings. The list could go on.
These cases do not suggest that the current Court is not sometimes highly polarized.
Rather, they show that these justices often
decide the cases before them based on what they
perceive to be the legal merits, the law
rather than a cynical partisanship. The
claim that Bush v. Gore represents a
politically motivated power grab in abandonment
of the Rule of Law, then, is lamentable.
The bad-faith thesis is betrayed by the point
- counterpoint mix of liberals, conservatives,
Democrats and Republicans.
With no small sense of irony, we ought also note that
most criticisms of the decision foresaw
that Bush would not have won the presidential
election had a recount proceeded to completion.
We now know that this is not the case.
Since the election, there have been several
independent examinations of the Florida
vote, including a national press consortium,
all of which conclude that Bush would have been
the winner by a small margin.
Regardless of the ultimate outcome of the
election, the Supreme Court’s ruling in Bush
v. Gore seems in line with our regard
for the Rule of Law rather than a betrayal of
Second Criticism: The Federalists Abandoned
The second condemnation of Bush v. Gore is that some or all of the five
the so-called “conservative” justices in the
majority abandoned their habitual allegiances
regarding federalism and the dignitary interests
of states in handing the election to their favored
candidate. When the decision is viewed
in broad strokes, this criticism appears to
have some merit. Cynics and partisans
can credibly cry usurpation: the Court appeared
to overturn a state supreme court’s interpretation
of that state’s law. It seemed as though
the Court substituted its own interpretation
of the state statutes for that of the state
court. This would seem to contradict the
majority justices’ consistent support for the
sovereign and dignitary interests of the states.
In Printz v. U.S.,
for example, the same five justices held that
the federal government could not co-opt or commandeer
state law enforcement authorities to do its
bidding. In Alden v. Maine,
the same five justices pronounced that the federal
government cannot commandeer state judiciaries
by forcing them to hear federal causes of action.
And in New York v. U.S.
the Court determined that the federal government
could not coerce state legislatures to pass
certain legislation. One will also recall
the panoply of cases authored by the five members
of the Bush v. Gore majority solidifying
the states’ sovereign immunity from suits for
But numerous problems with this criticism persist for me. The first is
that, as even Gore attorney and Harvard Law
Professor Lawrence Tribe has noted, the argument
gets the facts just plain wrong. The Court's
per curiam opinion did not substitute
its interpretation of Florida law for that of
the Florida Supreme Court. The Court found
that the recount ordered by the Florida court
violated principles of Equal Protection.
And that is most assuredly the responsibility
of the Supreme Court of the United States.
Second, the proponents of this criticism take scattered statements about federalism
out of their constitutional context. Again,
as Professor Tribe notes,
"Of course the federal judiciary has a role to
play in policing what a state's courts do with
respect to the manner in which presidential
electors are chosen. . . . [W]henever a provision
of the federal Constitution specifies something
. . . about how a decision otherwise internal
to a state's system of governance should be
made, that provision's enforcement is a matter
for the federal judiciary."
constitutional provisions at issue in Bush
v. Gore explicitly contemplate federal oversight
of state affairs. Careful examination
of what the Supreme Court did can be boring
and tedious, however, and many commentators
have preferred the more exciting and partisan
task of launching ad hominem attacks against
individual justices. For example, the
cover of Vincent Bugliosi’s book The Betrayal
of America: How the Supreme Court Undermined
the Constitution and Chose our President,
which portrays the five majority justices as
criminals in mugshots.
I am reminded once more about Madison’s concern
for the violence of factionalism.
Another problem with this criticism (overlooked by the critics) is that, if
true, it applies equally to the liberal justices
who dissented. If the majority justices
engaged in a dishonest philosophical flip-flop,
then so too did the dissenters who voted to
defer to the state court’s interpretation of
state law and allow the recount to go on.
Were the dissenters pure of heart? Were
the dissenters also result-driven? What
of the purity or biases of the split judges
of the Florida high court? The fact that
"everybody was doing it" does not
mitigate claims of hypocrisy, but it does cast
doubt on the overall plausibility of the hypocrisy
critique because it requires that not five,
but all nine of the justices betrayed our faith
in the federal judiciary's independence and
fidelity to law, not politics.
Dubious Assumptions of the Realpolitik Argument
I digress here because it may be helpful to address the criticisms of Bush
v. Gore on their own terms and assumptions.
Again, the theory holds that the majority justices
succumbed to their personal partisan sentiments
and abandoned the Rule of Law. They did
this as a rational, strategic maneuver that
would advance their political interests and
perhaps even facilitate the stocking of the
federal judiciary with their ideological allies.
This hateful critique implies that the justices
calculated that these political ends outweighed
the downsides of what they knew to be a disingenuous
power-grab. These downsides are well known
because they constitute the heart of the commentator’s
criticisms, namely, that the legitimacy of the
Court and the personal reputations of the justices
would suffer in the hindsight of history.
(Parenthetically, assuming that this kind of thinking instructs also that
the dissenting justices are guilty of the same
duplicity, in terms of their philosophical tendencies
toward expansive federal power, they too must
have calculated that their votes would maximize
their political advantage.)
I would argue that if we accept the proposition that the nine justices of the
U.S. Supreme Court are pretty accomplished individuals,
then both aspects of this assumption are questionable.
First, for the majority justices, it wouldn’t
be worth it. It would be a risky undertaking
indeed for an institution whose authority is
based purely on its reputation for impartiality
and objectivity to squander its so-called “political
to choose not a king, but a temporary president.
A president serves a four-year term in office
and is subject to the countervailing and often
dominating force of Congress. Some presidents
can go four years and get nothing done.
Presidents can only appoint federal judges with
the advice and consent of the Senate, which
is these days far from generously given.
History tells us that presidents elected without
a majority of the popular vote do not fare well
in the next election. Perhaps, then, experience
indicates that the Framers’ checks and balances
prevent unprincipled power grabs by one branch
of government not by making such moves impossible,
but by making them unprofitable, even quite
Second, for the liberal justices, it would seem that the rational, strategic
thing to do would have been to join the majority
and bargain for language that would dramatically
expand the Court’s Equal Protection jurisprudence.
In the end, four justices dissented and the
opinion explicitly limited itself to its facts.
This was a double and unnecessary defeat for
Critiques Do Not Address the Rule of Law
Both critics and defenders of Bush v. Gore have noted that the country
would have been better off if the Court had
produced a unanimous or near-unanimous decision.
I agree. This would have preserved the
Court's political capital, and Americans would
have found it easier to accept the decision
as a principled resolution, rather than possibly
the product of partisan politics. Michael
McConnell in the Chicago Law Review called the
Court's order to halt the recount "questionable
McConnell speculated that division among the
Court would cripple the incoming president,
whomever he may be.
This is an interesting analysis, but it has nothing to do with the Rule of Law.
It says nothing about whether the Court got
it right or wrong. As Joel Friedlander
explains, “Favorable public opinion is seen
as a precondition to the Court’s ability to
lay down a rule of law, rather than a consequence
of an institution’s reputation for the principled
application of law to fact.”
This theory that the Court should act strategically
to protect its political interests exposes the
cynicism toward the Rule of Law that pervades
parts of legal academia and the press.
It also underlies the sentiments of Justice
Breyer and others who suggest that the Court
should have left bad enough alone in Bush
Thus, we find that commentators who do not believe in judges' ability to apply
the Rule of Law, or don't believe in the Rule
of Law at all, propose conscious strategic behavior
by the Court to preserve its public image.
The contours of a judicial strategy based on
these anti-rule-of-law-principles might be as
First, where an issue is highly controversial, and the Court will be perceived
by the public as acting politically (which is
what it always does), then the Court should do
nothing. It should give up the question
to another institutional actor or just remain
silent. Second, where there is a controversial
political issue that the Court really wants to
decide despite the possible perception that it
would be acting politically (which is what it
always does), it is good to have unanimity so
as to fool the public into thinking the Court
was not acting politically. Third, where
the Court faces an issue that the public has little
reason to know or care much about, all bets are
off and the Court is free to pursue political
agendas without fear of reprisal; liberal can
be liberals and conservatives can be conservatives.
But, this describes the rule of politics, not the Rule of Law, and I have faith
that it does not describe the usual decision-making
process of the federal courts. Liberal judges
don't always vote like liberals and conservative
judges don't always vote like conservatives; often
to the dismay of the President who appointed them.
That is the history of the federal judiciary and
it betrays the veiled partisanship that shouts
against the Supreme Court's decision in Bush
v. Gore. It insults not the five in
the majority, but the four dissenters as well.
We can and should argue whether or not the Court got the answers to the animating
issues in the controversy right or wrong.
Was the Equal Protection Clause violated?
Did the state supreme court invade, unconstitutionally,
the domain of the state legislature? But
the cry of a power grab by five partisan judges
is unwarranted and unsupportable. James
Madison would not approve; it insults the Court
and does damage to “the permanent and aggregate
interests of the community.”
U.S. District Judge, Eastern District of Louisiana.
I wish to thank my law clerks, April Farrell
and George Fibbe, whose efforts helped make
this paper possible.
121 S.Ct. 525, 542 (2000).
A. Posner, The
Problems of Jurisprudence 12 (1990).
Latin of this phrase, penned by British jurist
and scholar Henry de Bracton, reads "Non
Sub Homine, Sed Sub Deo et Lege."
supra note 3, at 5.
rules in the United States today often contain
exceptions that allow judges to depart from
the stated legal rule where equity so requires.
supra note 3, at 12.
Joel A. Friedlander, The Rule of Law at Century's
End, 5 Tex.
Rev. L. & P. 314 (2000).
V. Dicey, Introduction to the Study of Law of the Constitution 120 (8th
ed., 1915), quoted in Friedlander, supra
note 8 at 332.
J. Horwitz, The
Transformation of American Law 1870-1960: The
Crisis of Legal Orthodoxy 193 (1992).
Paine, Common Sense, in Nelson
F. Adkins, ed., Common
Sense and Other Political Writings 3,
32 (Liberal Arts, 1953).
Barker, transl., The
Politics of Aristotle, book III, ch xi,
sec. 19 at 127 (Oxford, 1946), quoted in Antonin
Scalia, The Rule of Law as a Law of Rules,
Chi. L. Rev. 1175 (1989) at 1176.
Legal Movements: Law and Jurisprudence at Century’s
v. Gore, 121 S.Ct. at 557.
McGautha v. California, 402 U.S. 183,
252-53 (1971) (Brennan, J., dissenting).
City of Mesquite v. Aladdin’s Castle, Inc.,
102 S.Ct. 1070 (1982).
McNabb v. United States, 318 U.S. 332,
1 Cranch 137, 163 (1803).
3 W. Blackstone, Commentaries 23 (1783).
See also Ashby v. White, 1 Salk.
19, 21, 87 Eng.Rep. 808, 816 (Q.B. 1702).
Fla. Stat. §102.141(4).
Fla. Stat. §97.102(1) and §102.111(1).
Emergency Motion of Democratic Party of Florida
and Vice President Al Gore to Compel Compliance
with Enforcement of Injunction, McDermott
v. Harris, Case No. 00-2700 (Fla.Cir.Ct.
Palm Beach County Canvassing Board v. Harris,
772 So.2d 1222, 1239-40 (Fla. 2000).
Bush v. Palm Beach County Canvassing Board,
121 S.Ct. 471 (2000).
The Florida Supreme Court issued an opinion
addressing the remanded issues on December 11,
Gore v. Harris, 772 So.2d 1243 (Fla.
Bush v. Gore, 121 S.Ct. 512 (2000).
Bush v. Gore, 121 S.Ct. 525 (2000).
Fla. Stat. §102.112.
Harris also concluded that the manual recounts
were legally available only to correct errors
made by the voting or counting machines and
not to correct errors made by voters.
McDermott v. Harris, Docket No. 00-2700,
2000WL 1693713, (Fla. Cir. Ct. Nov.14, 2000).
Palm Beach County Canvassing Board v. Harris,
772 So.2d 1222, 1239-40 (Fla. 2000). The
Florida Supreme Court also held that the county
canvassing boards had the authority to order
manual recounts regardless of the source of
the error in the tabulation of the votes.
Gore v. Harris, Docket No. 00-2808,
hearing transcript, page 9, lines 12-17(Fla.
Cir. Ct. Dec. 3, 2000).
Gore v. Harris, 772 So.2d 1243 (Fla.
772 So.2d 1243, 1263 (Wells, C.J., dissenting).
Id. at 1272 (Harding, J., dissenting).
Emergency Motion for Temporary Restraining Order
and Preliminary Injunction, Siegel v. Lepore,
Case No. 9009, (S.D. Fla. Nov. 11, 2000).
Siegel v. Lepore, 120 F. Supp.2d 1041,
1050 (S.D. Fla. 2000).
Touchston v. McDermott, 120 F. Supp.
2d 1055(M.D. Fla. 2000)
Touchston v. McDermott, 234 F.3d 1130,
1132-33(11th Cir. 2000).
Siegel v. Lepore, 234 F.3d 1163(11th
Cir. 2000); Touchston v. McDermott, 234
F.3d 1133 (11th Cir. 2000).
Harris, et al. v. Florida Elections Canvassing
Commission, et al., 122 F. Supp. 2d 1317
(M.D. Fla. 2000).
Harris, et al. v. Florida Elections Canvassing
Commission, et al., 235 F.3d 578 (11th
The Electoral Count Act was passed by Congress
after the Tilden-Hayes election of 1876.
Bush v. Gore, 121 S.Ct. 525 (2000).
Carvin, quoted in Patti Waldmeir, Rehnquist
Term Muddied by Partisan Slur, Financial
Times, June 29, 2001, at 7
S.Ct. 2038 (2001).
S.Ct. 2404 (1990).
S.Ct. 2326 (2000).
Vindicating the Court, Wall
St. J., Nov. 13, 2001, at A22.
117 S.Ct. 2365 (1997).
119 S.Ct. 2240 (1999).
112 S.Ct. 2408 (1992).
H. Tribe, Bush v. Gore and Its Disguises:
Freeing Bush v. Gore from Its Hall of Mirrors,
L. Rev. 170, 187-88 (Nov. 2001) (emphasis
original). Tribe goes on to suggest, however,
that this principle may be limited by the political
M. Dershowitz, Supreme
Injustice: How the High Court Hjacked Election
See Jack M. Balkin, Bush v. Gore and the
Boundary Between Law and Politics, 110 Yale
L. J. 1407, 1432 (June 2001).
W. McConnell, Two-And-A-Half Cheers for Bush
v. Gore, 68 U.
Chi. L. R. 657 (Summer 2001).
who see the Court as a political creature often
praise the Warren Court's decision in Brown
v. Board of Education not only for its achievement
of substantive justice for African-Americans,
but also for its unanimity. Without such
unanimity, they contend, the backlash against
the Court after the decision would have been
even worse than it was, especially in the South.]
Friedlander, supra note 8 at 325.