OUT OF DIVISION, DECISION
The U.S. Supreme Court rules in Bush v. Gore
Wednesday, December 13, 2000
by RICHARD E. BERG-ANDERSSON
And so it is finally over: we now know for certain what "TheGreenPapers.com" has surmised for most of these past five weeks, that George W. Bush and Richard B. Cheney will be sworn in as 43rd President and 46th Vice President, respectively, of the United States of America. And we know this because a fractured court issued a divided opinion the evening of 12 December 2000 which forces the losing national ticket of Albert A. Gore, Jr. and Joseph I. Lieberman to finally face reality and give up the good fight.
The U.S. Supreme Court, despite its inability to find full consensus (the only consensus being that Florida's election law [as well as that in perhaps most of our Union's constituent States] is an unconstitutional maze of contradictions and half-assed solutions mostly violative of the Equal Protection Clause of the 14th Amendment to the United States Constitution. While the case of Bush v. Gore is- technically- once again remanded to the Florida Supreme Court, there is no possible manner or method- acceptable to the U.S. Supreme Court- for the Florida judiciary to order a new manual recount of the votes cast for President last 7 November in such a way that would pass constitutional muster.
The U.S. Supreme Court, despite the heavy hand brought down upon this 2000 Presidential Election so divisively rather than decisively, did us all a big favor by short-circuiting a few potential happenings already well underway that could have further mucked up the Federal constitutional/electoral works more than they already are. For example, there was the erroneous theory- put forth by the Bush lawyers (but really taken and run with by the Republican leadership of the Florida House of Representatives)- that the term "legislature" in Article II, Section 1, clause 2 of the U.S. Constitution refers to the Legislature of a State alone as a body when, historically, it is a "term of art" referring to the entirety of the State's politicolegal system (it had to be just such a "term of art" back in 1787: Connecticut and Rhode Island were- at the time- both still operating under their colonial charters, neither of which embodied separation of powers to the fullest degree [in Connecticut, in fact, the upper house of the General Assembly- its Senate- functioned as, in effect, a Governor's Council as well as the Supreme Court of Errors, then that State's highest judicial body])- contemplating the State's Constitution, Legislature, Executive and Judiciary as a whole; I myself often enough read through the election codes of all 50 states plus the District of Columbia while doing research of various types for this site throughout this past Fall's campaign and I did not see one single statute passed by the Legislatures of the several States that their Governors did not have a say in (either to sign it or to veto it, subject to future override). The further concept, flowing from this theory (and pushed, admittedly rather half-heartedly, by the Bush legal team), that the Florida Judiciary had no real right to review/apply/interpret Florida election law absent a specific grant was even more ludicrous (in the second oral argument, U.S. Supreme Court Justice Kennedy- who, after all, was in the majority of the split decision which resulted- openly worried about a State Legislature being so "unmoored" from its own Constitution).
But the Florida Legislature- or at least its lower house (which, so it appears at this writing, will be the only one of the two chambers to take up the issue)- then compounded its misreading of the term "legislature" in Article II by claiming that they were compelled to choose that State's Electors (even while an election contest- permissible under Florida law- was still ongoing!) under cover of that provision of the Federal Constitution (when no such constitutional provision evincing such "compulsion" even exists!!) and then, at the same time, claiming that the "compulsion" in question flows equally from 3 U.S.C. 2 (when all that Federal statute does is to permit a State to appoint electors "as the legislature" [and here "legislature" may- or may not- mean the State Legislature alone as a body] "...may direct" when there has been a failure to choose Electors on Election Day). Put aside the issue of whether or not Florida had failed to choose Electors on 7 November 2000 while a contest over who those Electors might be was ongoing, there is nothing in 3 U.S.C. 2 mandating the Florida Legislature to make such a choice!
What the Florida Legislature- prodded by its lower house (the State Senate seemed quite a bit more reluctant to get sucked into this- much like an older child being enticed into peeking at what the as yet unwrapped Christmas presents under mom and dad's bed might be by an overly curious younger sibling who wants to "share the guilt")- was about to engage in was a ruthless, unjustified political power-grab merely engaged in to ensure that the Florida electors would be Bush's- regardless of whether or not a potential recount indicated that Gore might be the winner- should the issue go before the tabulation session of Congress (where the Bush partisans could be sure of ultimate victory) next month. Fortunately, the U.S. Supreme Court's split decision of 12 December put the "ki-bosh" on that little piece of political chicanery! However, let no one reading what I have just written in any way construe my criticisms of what the Florida Legislature might have done as my having seen the judicially-based remedies sought by the Gore partisans as being any the more virtuous: far from it!!
Robert A. Burt, in his 1992 book The Constitution in Conflict, cites Alexander Bickel (most famous for his work The Least Dangerous Branch) who, in 1969, scored the U.S. Supreme Court's decision in the Brown v. Board of Education cases (plural- as there were, in reality, two Brown cases: Brown I  enunciated the constitutional principle, reversing Plessy v. Ferguson's 1896 "separate but equal" doctrine; however, Brown II, the 1955 implementation decision, allowed Brown I to be applied in the still-Jim Crow South "with all deliberate speed" [a fancy way of saying "delay would be tolerated"]) for fostering a climate of judicial activism which was, in Bickel's opinion, largely responsible for the social disorder of 1960s America. Burt- while surely no fan of judicial activism- strongly disagrees with Bickel's assessment as to this effect of the Brown decisions and Bickel's further contention that judicial review is a deviant form within overarching democratic principle; Burt's constitutional viewpoint is based on what might be called the Madisonian "egalitarian" principle (in which each of the three branches of government equally share the burden of constitutional interpretation)- as opposed to both the Hamiltonian "judicial review" theory first embodied in Chief Justice John Marshall's opinion in the early Supreme Court case of Marbury v. Madison and the Jeffersonian "legislative supremacy" concept held by those opposed to the Marbury decision (Burt, for example, goes to great length, in a full chapter of book, to resolve the seeming contradiction between Brown I and Brown II- "you must do this... but not so fast!"- as, in reality, an inherent consistency engendered by the Madisonian "egalitarian" view in which the Court had no more right to impose its will on States with segregated schools than the Legislatures in such States had to pass laws authorizing the segregation in the first place).
Burt writes: "To blame the Supreme Court for any part of this turbulence seems almost perverse. Bickel's censure of the Court blames the messenger for bringing bad news. In fact, the bad news was already embedded in Brown I: in 1954 a substantial part of the American population was clearly unwilling to acknowledge the legitimacy of the claims adamantly and even desperately asserted by another part. Ordinary political institutions were thus unable to address, much less ameliorate, this polar conflict; and the rule of law was thereby endangered, whether ideally conceived as commitment to shared principles of justice or minimally viewed as the maintenance of social order."
Burt uses the example of a three-person society in which two of the members vote to kill the third (the third obviously voting in the minority) for some greater good (perhaps there is only enough food in the closed system that is this hypothetical society for two people to survive). The question is: does "majority rule" bind the third to accept the decision and allow himself to be murdered by the other two? Where the two in the majority- clearly- would argue that the fair standard of "one man, one vote" was here applied, the one to be killed would argue that the result renders him or her "unequal" in comparison to the majority two. The minority one would further argue that he or she was "enslaved" by the majority, but the two in the majority could then plausibly argue their potential "enslavement" by the minority (since the refusal of the third to allow him/herself to be killed threatens the survival of all three- not just the one who refuses to accept the majority decision). Burt saw this hypothetical (as he saw the issue of 1950s race relations lurking behind the Brown decisions) as one of those inexorable conflicts "where, because the antagonists each regarded defeat as intolerable enslavement, the fundamental principles of equality and self-determination were necessarily traversed for the loser. No matter who wins, the principle of self-rule is defeated; in such disputes no scheme of governance, no system of aggressive social decision making, can find 'ultimate self-consistency' "- ultimate self-consistency that, in much legal theory, is necessary- or at least desirable- in order to confer legitimacy on the ultimate decision.
"This does not mean that some neutral third party," Burt continues, "like a judge standing aloof from the immediate antagonists, can resolve this dispute so as to vindicate the democratic principles of equality and self-determination. It means that these principles cannot be vindicated by any means, in any institutional setting [emphasis, in both cases, mine: REB-A], so long as the disputants remained [sic] locked in polarized conflict. The dispute can only be resolved by authoritarian imposition of the victory of one antagonist over the other... This coercion can occur on the battlefield, in a legislature, or in a courtroom; in all of these settings [again, all emphasis mine: REB-A], such resolution is contrary to democratic principle."
Applying what Burt has written- as quoted above- to the legal/constitutional struggle over Florida's 25 Electoral Votes over the last 5 weeks, this drives a nail into the coffin containing the remains of the arguments of either the Bush supporters or the Gore supporters that what the other side tried to do throughout this election dispute was inherently unfair through an appeal to some kind of "we're on the side of democracy... they aren't" argument. Put another way, the Florida Legislature looking towards choosing Bush Electors under 3 U.S.C. 2 was acting in no more an anti-democratic manner than the Gore legal team seeking to legitimize partial manual recounts by court order... and, of course, vice versa! Neither the Bush side nor the Gore side was going to willingly surrender to the other absent some kind of authoritative ruling favoring either Bush or Gore: Burt's "authoritarian imposition of the victory of one antagonist over the other".
Having each sought anti-democratic means (both sides sought to benefit from judicial intervention under their respective legal theories re: Florida election law and/or its relationship to the U.S. Constitution; the Bush camp, with the additional advantage of Republican control of Florida's political apparatus, also sought to benefit from the actions of the Florida Legislature, if necessary) to advance their respective causes in what could not be other than an intractable dispute, the only possible solution was a final decision (in this case by the U.S. Supreme Court: a body here acting as if it were not the ultimate arbiter [by its use of that "reversed and remanded" phrase]- because, divided as it was, it could not- in fact- be that ultimate arbiter even though- in our constitutional system- it has the final say) which itself was anti-democratic. The sad irony is that all this "anti-democracy" for the last month or so was solely intended to sort out the end result of what was supposed to have been the most democratic of all processes in the American politicolegal system: an Election! Neither side in this election dispute- Bush's nor Gore's- sought legal equity, as the Roman law so well put it (and- in fact- required!), "with clean hands"!!
Much will be made, I am sure, of the fact (primarily by Gore partisans unhappy with the ultimate result) that the U.S. Supreme Court ended up issuing a divided opinion which coerced one party to accept the victory of the other, thus imposing anti-democratic judicial will in favor of a party which had actually (Gore partisans would, perhaps, say "hypocritically") used a legal attack on just such an imposition of anti-democratic judicial will by the Florida Supreme Court to even get the U.S. Supreme Court to act in the first place. But, as Burt writes in continuing his disagreement with Bickel's notion that judicial review was a deviation from democratic principle, "[m]ore accurately, judicial review- that is, resort to some coercive instrument extrinsic to the disputants- is a logical response to an internal contradiction in democratic theory between majority rule and equal self-determination. It is not a deviation from that theory. A sharply polarized dispute, where neither antagonist is willing to accept defeat, brings forward this internal contradiction and consequently destroys the legitimacy, in terms of democratic theory, of any authoritative resolution of this dispute- whether this resolution is effected by majority vote or by judicial override on behalf of the previously defeated minority."
Again, applying what is quoted from Burt above to the 2000 Presidential Election in Florida (certainly "a sharply polarized dispute, where neither antagonist [was] willing to accept defeat"), there was simply NO way to truly legitimize anything that was done to resolve this conflict; this last statement is simply a longer way of saying what I myself wrote in a Commentary within days after Election Day: that there was no way of making this Election "fair" once the dispute in Florida got underway. As a result, having the Florida judiciary order a manual recount- under whatever standards- was patently "unfair" (since such a recount would, in fact, be well after the 14 November 2000 deadline mandated by Florida election law for certification anyway)- but it was no more (nor, for that matter, less) "unfair" than having the Florida Legislature unilaterally choose Electors, as either of these options would have been equally authoritative and, at the same time, just as "anti-democratic". The rhetoric spent by each side on how "fair" they were and how much the other side was being "unfair" in their own pursuit of legal remedy re: Florida was, in the main, just so much hyperbole- a term which we now designate by the not all that much more palatable word "spin".
Unless either Bush or Gore had conceded defeat voluntarily not too long after the Election, there could be none other than an "anti-democratic", "authoritarian"- in a word, "unfair"- resolution to the election dispute in Florida when all was said and done: a resolution for which any "legitimacy" would be "destroyed"; thus, no matter which man was declared the victor once that point of no return (say, not much later than the completion of the statutorily mandated automatic machine recount on 9 November) had been passed, those who backed the loser could always claim the winner "stole the election"- that the victor ultimately "lacked legitimacy". Thus, the "drop-dead" date for legitimizing this Election was not, as things turned out, either 12 December (the so-called "safe harbor" date) or even 18 December (when the Electors will cast their State's Electoral Vote); the "drop-dead" date was, instead, within mere days of last 7 November and that particular deadline had been passed long before this dispute had fully evolved into the intractable one we now know it to have been this past month or more.
It all begs the question of whether or not the Presidency at the
helm of what will be the 54th American Administration was, in the end,
even worth the means and method applied by each side to seeking and,
eventually, achieving a resolution of the dispute over which man should
exercise the powers of that High Office come next 20 January; it
matters not what Bush or Gore, their running mates or their political
and legal advisers now might say in their attempts to appear
conciliatory and, thus, try to smooth over the questions raised about
the victor's legitimacy, for it is the attitude of the grass-roots
supporters of the loser (as well as the responsive behavior of the like
supporters of the winner)- not the campaign or Party hierarchies nor
even the candidates themselves- that will decide just how "legitimate"
the final result- finally forced by the U.S. Supreme Court's divided
opinion- actually is among all those who have borne witness to this
historic, yet divisive, Election 2000.