Bush v. Gore:  Whither Art The Rule of Law?
Courts and Politics

Lecture given December 3, 2001 at Princeton University
by The Honorable Martin Feldman,
Judge of the U.S. District Court, Eastern District of Louisiana

Thank you to Robert P. George and
the James Madison Program in American Ideals and Institutions at Princeton University
for permission to post this lecture.

---

Judge Martin L.C. Feldman^[1]

Introduction

I 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.

In 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.”

I 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 faction.

Summary of the Criticisms of Bush v. Gore

The 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 of law.”^[2]   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 politics. 

It 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 authority.”^[3]

A 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?”

The Meaning of “The Rule of Law”: Definition and Philosophical Underpinnings

Al Gore, in his concession speech, invoked one of the most eloquent statements of the Rule of Law–the motto inscribed over Langdell Hall at Harvard Law School, “Not Under Man, But Under God and Law.”^[4]  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 Law."

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.^[5]  The natural law produced powerful concepts of justice, such as equity.^[6]  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 principles.

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 its “oracles.”^[7]

Blackstone defined the Rule of Law as the vindication of rights through adjudication.^[8]   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.”^[9]   Second, “the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts.”^[10]  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.”^[11]

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.’”^[12]  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.”^[13]  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.”^[14]

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 discretion.

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 in society.^[15]  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.^[16]  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 judges. 

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.

Supreme 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 of men.” 

This 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.”^[17]  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.^[18]  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.”^[19] 

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 right.”^[20]  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.”^[21]  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.]

The Election

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.^[22]  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 days later.)  

The Florida Secretary of State, Katherine Harris, who was administratively responsible for certifying the Florida votes,^[23] 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.^[24]  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.^[25]  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.^[26]  The Florida Supreme Court, however, didn’t address the remanded decision until after it ruled on  Gore's post-election challenge.^[27]

In ruling on Gore’s election contest, the Florida Supreme Court ordered a state-wide recount of ballots which contained undervotes.^[28]  The court also ordered that the votes from incomplete recounts be counted for Gore.^[29]  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.^[30]  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 recounts cease.^[31]  Thus, the end of the election and Bush was declared the winner.

Florida 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.^[32]  Thus, Harris ruled that Gore's recounts had to be completed by November 14, 2000.^[33]  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.^[34]  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.^[35]

Gore’s Post-Election Contest

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.”^[36]  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 already occurred.^[37]  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.^[38]   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 ballots.

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...”^[39]  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.^[40]

Federal Court Involvement

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.^[41]  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.”^[42]

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.”^[43]   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 appropriate.^[44]

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.^[45]  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 Florida.”^[46]  However, the dissenters to those opinions found that the Florida election scheme was unconstitutional.^[47]

The federal courts in Florida also heard a case involving the counting of absentee ballots.^[48]  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.^[49]   The plaintiff’s appealed the ruling to the Eleventh Circuit, which affirmed the district court’s ruling.^[50]  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.”^[51]

 Supreme 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;^[52]              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. 

Analysis 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 stability requires.”^[53] 

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.^[54]  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 violation.^[55]  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.    

The 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."^[56]  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,^[57] 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. Eichman,^[58] 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 States,^[59] 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.^[60]  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 the faith.

The Second Criticism: The Federalists Abandoned Their Principles.

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.,^[61] 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,^[62] 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.^[63] 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 damages.

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."^[64] 

The 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.^[65]   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.

The 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 capital”^[66] 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 costly.

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 the dissenters. 

Consequentialist 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 judicial statesmanship."^[67]  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.^[68]  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.”^[69]  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 v. Gore.   

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 follows: