Few cheers for rough justice

The Vote
December 14, 2001

No American is likely to forget where they were when the ruckus started on the evening of November 7 2000. As the results of the presidential election began to pour in, all attention focused on Florida and whether it would go for Al Gore or George W. Bush. Just before 8pm, the networks called the state for Gore; at 9.30pm Bush denied it and the newsreaders began to waffle; less than 30 minutes later they took Florida from Gore's column and pushed it into the "undecided" list; by the wee hours of the morning of November 8, the all-knowing mandarins of the airwaves began to name Bush as the winner of the all-important state; at 2.30am, Gore called Bush to concede the election; by 3.45am, Gore had changed his mind and called Bush to retract his concession; at 4am Florida was pushed back into the undecided column.

Then the fun started. Over the next five weeks America witnessed a political cat fight, with the supporters of Gore and Bush politically hissing and legally clawing at each other over demands for recounts, arguments over what was to be done with the previously unheard of "chads" - the dimpled and the hanging varieties - and whether this was a matter of state or federal law.

With several trips to lower state courts, the Florida Supreme Court, and the Supreme Court of the United States, the combatants in what would come to be known as the case of Bush v Gore finally stilled their screeching when the US Supreme Court took up the case on its merits. On December 9, the High Court issued a stay to stop the recounting by a narrow five to four vote among the nine justices; on December 12, the court handed down its ruling, shutting down the continuing recounting that had been allowed by the Florida Supreme Court. On December 13, Gore conceded the election to Bush, who would be finally sworn in on January 20 as the 43rd president of the United States.

For those with a taste for the rough-and-tumble of American law and politics, there will likely never be anything like what one of the contributors to this volume simply and rightly calls "the mess in Florida". Whatever damage the controversy may have done to America's electoral processes and political institutions, however, there is little doubt that the grimmest legacy of the great, disputed election of 2000 will be the endless stream of books and articles that will flood out of the academy, with all the sanctimonious legal theorising and hand-wringing political moralising that makes academic life the swell calling that it is. This collection of essays, The Vote , appeared nearly instantly (in fact, most of them had already appeared in the University of Chicago Law Review ).

Cass Sunstein and Richard Epstein, professors at the University of Chicago's law school, have assembled an impressive stable of commentators from the fields of constitutional and electoral law to try to explain - and to evaluate - the legal and political impact of Bush v Gore . By and large, they succeed. Yet this is not a book for the untrained. The essays here presuppose a high degree of familiarity with American constitutional history and with the decision of the Supreme Court in Bush v Gore in particular; it would have been helpful to those not conversant with the subtleties of American constitutional law to have included the actual decision as an appendix. As it stands, the ordinary reader will have some tough patches here in trying to divine the implications of such things as the "political question doctrine" and the line of Supreme Court cases dealing with voting rights.

One thing that emerges from The Vote is that Bush v Gore is a case with more enemies than friends, and a decision whose friends are, at best, half-hearted. Michael McConnell, for example, sums up this half-heartedness by entitling his very helpful essay "Two and a half cheers for Bush v Gore ", not least because he fears that the decision "may exacerbate the already corrosive cynicism about public institutions and undermine public faith in the rule of law itself". It seems safe to say that there will be very few willing to praise the court's action as great constitutional law, however much there might be glimmers of statesmanship to be seen in it. At the end of the day, the persistent problem with the case is the nagging doubt - all too much encouraged by several of the essays here without evidence any stronger than the authors' own ideological hunches - that the majority of five justices who prevailed over the four dissenters (the five most conservative, Republican-appointed justices at that) chose to cast their votes as they were moved by their political inclinations rather than by what they thought was demanded by neutral legal principles.

David Strauss is the least restrained of the authors here gathered in his assessment. His liberal squint detects an all-too-obvious political scheme. He is convinced that perhaps a majority of the Supreme Court were determined to overturn any ruling of the Florida Supreme Court that was favourable to Gore, at least if that ruling significantly enhanced Gore's chances of winning the election. To Strauss, and those of his ilk, there is no doubt that when the Supreme Court took the case the "outcome was a foregone conclusion". At his most charitable - and it is not all that charitable - the most he can say in defence of the court is that it was "reacting viscerally on the basis of an inchoate sense, not grounded in any legal principle, that something had to be done". The price paid, in Strauss's view, was to undermine the rule of law. Yet even some of those writing from the left side of the academic house are willing to concede that the court's taking the action it did may well have been in the best interest of the country. As Sunstein notes, even a case as "weak and unprecedented" as this one had the virtue of producing "a prompt and decisive conclusion to the chaotic post-election period... (and) did so in a way that carried more simplicity and authority than anything that might have been expected from the United States Congress". The result, in Sunstein's critical eye, is that "the court's decision produced order without law", but order nonetheless.

The other side of the debate is not without powerful voices. John Yoo, for example, takes on directly the most important issue and insists that the decision in Bush v Gore did nothing to undermine the legitimacy of the Supreme Court. There was little doubt that things were on the verge of spiralling out of control and the court did what was in the best interest of the nation. Taking the same side, Epstein points out that the decision of the court was "greeted with widespread relief and not widespread protest". America did not become consumed by the electoral curiosity that was the 2000 presidential election: "After a short flurry of heated debate over the soundness of the decision, the nation buckled down to business as usual."

No small part of this return to business as usual, Samuel Issacharoff points out, is due to the inherently legal nature of the American political order. The fact is "the legal system responded remarkably well to tremendous stress". What is more, in a country where lawyers are not always held in the highest esteem, in the most tumultuous election of the 20th century "it was law and lawyering that allowed a resolution of an election whose margin of victory proved less than the margin of error in the electoral system overall". For the most part, Americans are not continuing to mull over the long-term implications of what the Supreme Court did to give them George W. Bush as their president. Indeed, less than ten months after his inauguration, the president was getting the highest public approval ratings since polling began.

One of the most discouraging facts about Bush v Gore and its presumed legacy is what it says about the relationship between the democratic process and the demands of the constitution as recreated by the Supreme Court. As Richard Pildes argues, the case was nothing less than "the most dramatic moment in a constitutionalisation of the democratic process that has been afoot for nearly 40 years". When taken with other expansionist cases of recent years such as the abortion cases, John Yoo insists, Bush v Gore should have been expected. Given the court's "undistinguished record" in dealing with electoral law cases, and its generally "unsophisticated view of the political process", many, such as Elizabeth Garrett, simply wish the Supreme Court had left well enough alone and refused to get involved. Given the innovative new notion of equal protection of the law in elections posited by the majority in the case, many conservative Bush supporters are likely to feel the same way years down the road.

Beyond the excitement of the moment, there were deeper issues revealed by the controversies surrounding Bush v Gore , not least being what Epstein calls the "grubby" details of America's electoral system. The differences between states in how elections are conducted (and perhaps especially the differences within states) have drawn attention to possible areas of reform that would likely be all to the good and not undermine the federal barrier between nation and states that was so much a part of the battle between Bush and Gore. The fact that the great fear came true - that someone could win the popular vote but lose the presidency in the electoral college - all but guarantees a wholesale remedial assault on America's way of electing its president.

The two essayists most prescient here turn out to be Judge Richard Posner and Professor Michael McConnell (who has been nominated by President Bush to a judgeship on one of the United States Courts of Appeal). Both argue that even if Gore had been allowed to have the recounts he demanded, and even if those had been handled as he desired, Bush would still have won. Fifty-two weeks and three days after the November 7 2000 election, a major recount effort undertaken by a consortium of news organisations confirmed that Bush, under the rules clamoured for by Gore, would indeed have become president. Not to let the dust settle completely, the review also suggested that the election was a "perfect tie", a contest so statistically close that an unambiguous winner simply cannot be called. In light of all that, as Posner concludes, it may be enough to say that Bush v Gore was at least "rough justice" even if it was not perfect legal justice.

Gary L. McDowell is director, Institute of United States Studies, University of London.

The Vote: Bush, Gore and the Supreme Court

Editor - Cass R. Sunstein and Richard A. Epstein
ISBN - 0 226 21306 4 and 21307 2
Publisher - University of Chicago Press
Price - £26.50 and £11.50
Pages - 266

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