The Supreme Court and Article III of the United States Constitution

      The Case of Bush v. Gore December 2000
      One of the most controversial Supreme Court decisions in our history occurred in December 2000: the case of Bush v. Gore. It was a case that a majority of legal scholars agree was of a political nature. Many believed that the Supreme Court should not have intervened.
      The presidential contest in the year 2000 between George W. Bush and Albert Gore Jr. was one of the closest elections in modern history. A majority of the national popular vote went to Gore, but the electoral vote was not decided until the Supreme Court ruled on the legal issue challenging the vote count in the state of Florida.
      The winner of the popular vote in Florida would receive the state’s electoral votes that would be enough for either Bush or Gore to have a majority of electoral votes and thus be elected president. Bush received a small majority of the popular votes after the first vote count. Gore challenged the count and asked for a recount of several counties. Florida’s Supreme Court ordered the recount to proceed. Bush appealed the Florida court’s decision to the United States Supreme Court. Bush feared that a recount would give a majority of the votes to Gore. After two different proceedings before the United States Supreme Court, the Court ruled that the Florida court was wrong and therefore, no recount was allowed, thereby giving the presidency to Bush.
      American voters thought the third branch of government, the Supreme Court, would act as a catalyst against divisions in the country. The majority of voters in the country voted for Gore. As the election became a mess, the country turned to the Court, hoping that it would provide wisdom beyond the two bitterly opposed political camps. It didn’t happen. The Court seemed as deep into politics as any other branch of government. Especially when one matter before the Court was the outcome of an election in which a main issue was the appointment of future justices.
      There has always been pressure on the Supreme Court to appear to rise above political involvement. But the decision that was made was categorized by many as a political decision. The bitter 5-4 decision was one of the most divisive in our nation’s history. The dissenters in their opinion not only criticized the decision as being wrong but also dangerous. Justice Steven Breyer warned his colleagues that they “risk a self inflicted wound that may not just harm the court, but the nation.”
      In decisions prior to the Bush case the conservatives on the Court were hardfast on shifting power from the federal government to the states. In this case the justices contradicted their long held states’rights position to reach the result they wanted. The majority struck down the Florida Supreme Courts interpretation of Florida election law.
      Whether the majority decision in the Bush case was politically motivated, it appeared to be an extension of equal protection. It would seem that legal challenges could be made to all disparities in voting machines and election day procedures. However, the consensus after the decision was that the conservatives in the majority would not likely be receptive to any of these challenges. Even though Supreme Court decisions usually establish precedent to be followed in new cases, the majority used unusual terminology that created doubt about precedent. They said that their decision was limited to the present circumstances. What they effectively said was that the case only applied if you were a presidential candidate whose opponent had persuaded a state court to order a statewide recount without appropriate standards.
      The Supreme Court acknowledged that the Florida election code did not violate the U.S. Constitution or other federal law, and that the Florida Court did not change the rules of the election; yet the Supreme Court found a constitutional question in the “problem of equal protection” in the “present circumstance.” The circumstance the Supreme Court addressed was the application of the clear-intent-of-the-voter standard in Florida law, a standard common across the country. The Florida code provided that duly constituted election officials in the various counties must apply this standard. If a given county’s application of the standard was reasonable, it should stand muster regardless of what another county does, just as, on a notional basis, diverse practices by canvassing committees were accepted in the validation of votes. The practice in each county must provide “equal protection” in the validation of the clear intent of the voters under the jurisdiction of that county’s election officials. When the Supreme Court held that the Florida Court should have “adopted adequate statewide standards for determining what is a legal vote,” it required the Florida court to reject the legitimate state election code’s county-by-county application of the clear-intent standard.
      The equal protection clause of Constitutional Amendment IV was enacted to give equal status to freed black slaves. The conservative justices had long been reluctant to apply the laws protection to minorities. Several civil rights advocates pointed out that in the Bush v. Gore case, they were eager to provide its protection to a wealthy white political candidate.
      The decision in favor of Bush was 5-4. Voting with the majority were Chief Justice William H. Rehnquist, Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Voting with the minority were Justices John P. Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Who were these justices on the right and left? How had they voted in the past and what was their stance in the Bush v Gore case? Were their opinions politically motivated or governed by the Constitution?
      Chief Justice William H. Rehnquist expressed approval of being called a conservative partisan. Rehnquist, a Nixon appointee, generally was seen as a justice aware of the Courts limited enforcement power. His opinions attempted to give deference to the states whenever possible. In the Bush case he strayed from his prior leanings.
      Justice Sandra Day O’Connor appointed by President Reagan in 1981 was the first woman appointed to the Court. She was known as a conservative with some displays of independence. She preferred the Court stay out of state matters but voted to intervene in state matters in the Bush case.
      At the time of the 2000 election O’Connor’s husband, a Washington attorney, had some health problems. There was speculation that O’Connor wanted to retire to return to Arizona and spend more time with her husband. Newsweek magazine in its’ December 25, 2000 edition reported that she attended an election night party on November 7, 2000, with mostly friends and familiar acquaintances. While watching a television set she heard television anchorman Dan Rather call Florida for Al Gore. “This is terrible,” she remarked. She commented that the election was over since Gore had already carried two other swing states.
      Shortly after she left her place next to her husband, he remarked that his wife was upset because they wanted to retire to Arizona and a Gore win meant they would have to wait another four years. She did not want a democrat to name her successor. Two witnesses described this extraordinary scene to Newsweek Magazine, (December 25, 2000.)
      In spite of her declared bias O’Connor voted with the Court majority against Gore. She could have recused herself in an honorable way but then Bush would not have had the votes to prevail. O’Connor would have to remain on the bench if she did not want a democrat president to replace her. Her behavior in this case fueled criticism that justices seek to influence elections. Could it be that she violated the “good Behaviour” clause of Article III?
      Justice Anthony M. Kennedy, appointed by President Reagan in 1988 was considered a reliable conservative. On occasion he became one of the Court’s swing votes. He made majorities for both liberals and conservatives. One newsmagazine reported that some high court clerks referred to Kennedy as “Flipper”. (Newsweek December 25, 2000)
      Appointed by President Reagan in 1986, Justice Antonin Scalia had sometimes been described as one of the Courts most irascible justices. Scalia used his rhetoric to attack and ridicule his colleagues. He referred to them and their decisions with unkind adjectives: “irrational,” “smug,” “preposterous’” “self righteous’” and “lawyer trained elite.”
      A probability existed that after the 2000 election Chief Justice Rehnquist would retire. During George W.Bush’s campaign, candidate Bush commented that the two justices he admired most were Justice Scalia and Justice Thomas. During the election campaign Scalia was quoted as saying he wanted Bush to win the election so that he could be appointed Chief Justice by a republican president.
      On December 9, 2000 the same five justices granted Bush a stay of the Florida Supreme Court’s mandate allowing the recount. A stay meant that the recount could not proceed. Scalia issued an unusual concurring opinion. He said, “ Though it is not customary for the Court to issue an opinion in connection with its grant of a stay, I believe a brief response is necessary to Justice Stevens’ dissent. I will not address the merits of the case, since they will shortly be before us in the petition for certiorari that we have granted. It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success.
      “…Another issue in the case, moreover, is the propriety, indeed the constitutionality, of letting the standard for determination of voters’ intent—dimpled chads, hangingchads, etc.—vary from county to county, as the Florida Supreme Court opinion, as interpreted by the Circuit Court, permits. If petitioner is correct that counting in this fashion is unlawful, permitting the count to proceed on that erroneous basis will prevent an accurate recount from being conducted on a proper basis later, since it is generally agreed that each manual recount produces a degradation of the ballots, which renders a subsequent recount inaccurate.”
      Justice Scalia all but declared Bush the winner without hearing oral arguments or without reading the yet to be filed legal briefs. In one paragraph of his opinion he stated, “I will not address the merits of the case.” In the paragraph quoted above he did address the merits of the case. The whole issue of the appeal was whether to allow a recount. He determined that a subsequent recount would be inaccurate. The idea of declaring a party the winner without reading the briefs or hearing oral arguments is repugnant to the Constitution.
      A disturbing fact surfaced after the decision in Bush v. Gore, which gave the presidency to Bush. Time Magazine, (December 25, 2000), reported that Scalia had two sons that were employed by the law firm that was working on Bush’s post election phase. This fact was categorized by many as a conflict of the purest form. Any lower court judge who might have a similar conflict would have asked to be recused. Many said that Scalia should have done just that. Scalia’s behavior would suggest another issue of violation of the standard of “good Behaviour.”
      Another Justice who Bush expressed open admiration for was Justice Clarence Thomas. Bush’s father appointed him in 1991. Thomas’ supporters referred to him as the leading conservative in America.
      After the Bush v. Gore decision, Time Magazine in it’s December 25, 2000 edition, reported that Thomas’ wife worked for the conservative Heritage Foundation where she had been “vetting” resumes for positions in the Bush administration. Mrs. Thomas denied her work was for Bush. Once again another conflict appeared to exist, one that seemed to violate the “good Behaviour” provision.
      The oldest member on the Court, at eighty years, was John P. Stevens who was appointed in 1975 by republican President Gerald Ford. Stevens was known as the most liberal member of the Court even though he was appointed by a republican. Stevens wrote a dissenting opinion in the Bush v. Gore case. The last paragraph of the dissent was the most critical of the majority. “What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of the Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is the confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
      President Bush appointed Justice David Souter in 1990 who hoped to establish a conservative majority on the Court. The conservative’s expectations were not reached because Justice Souter has voted with the liberals on most issues. He was not very vocal in the Bush v. Gore case.
      President Clinton appointed the second woman to the Supreme Court in 1993. She was Ruth Bader Ginsburg who regularly voted with the liberals. In the Bush v. Gore case she issued a dissent defending state sovereignty. “The Court’s conclusion that a constitutionally adequate recount is impractical is a prophecy the Court will not allow to be tested. Such an untested prophecy should not decide the presidency.”
      Another justice appointed by Clinton in 1994 was Justice Stephen Breyer. He was a cautious jurist who generally voted with the liberals. Here is a quote from his dissent in Bush v. Gore: “At the same time, as I have said, the Court is not acting to vindicate a fundamental constitutional principle, such as the need to protect a basic human liberty. No other strong reason to act is present. Congressional statutes tend to obviate the need. And, above all, in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public’s confidence in the Court itself. That confidence is a public treasure. It has been built slowly over many years, some of which were marked by a Civil War and the tragedy of segregation. It is a vitally necessary ingredient of any successful effort to protect basic liberty and, indeed the rule of law itself. We run no risk of returning to the days when a President (responding to this Court’s efforts to protect the Cherokee Indians) might have said, ‘John Marshall has made his decision; now let him enforce it.’….But we do risk a self-inflicted wound—a wound that may harm not just the Court, but the Nation.
      “I fear that in order to bring this agonizingly long election process to a definitive conclusion, we have not adequately attended to that necessary ‘check upon our exercise of power,’ ‘our own sense of self-restraint.’”
      The Courts’ decision was every bit as controversial as the election it resolved. Some of its members attacked the ruling as antidemocratic and politically motivated. Could the Court recover?