Al Gore’s exit to political oblivion has no doubt delighted many conservatives. But there is nothing for conservatives to cheer about in the U.S. Supreme Court’s decision in Bush v. Gore, the instrument of Gore’s demise.
The unsigned majority opinion concluded that Florida’s recount procedures violated the Equal Protection Clause of the 14th Amendment, because no uniform standard was used in the recount ordered by the Florida Supreme Court to determine what constituted a valid vote. This conclusion was somewhat surprising because Florida’s election statutes, like those of most other states, merely charge those counting the votes to determine the “intent of the voter.” In other words, the U.S. Supreme Court found fault with Florida’s Supreme Court not because it had vitiated Florida’s statutory election scheme, but because the Florida court had not made up a new standard for counting votes to go along with its other misreadings of the legislature’s intent.
The U.S. Supreme Court’s attempt to ensure the “equality” of all votes is sure to invite further federal intervention in state elections. One can easily envision, for example, a black candidate challenging his defeat in federal court on the grounds that poorer minority districts often use older voting machines that produce more spoiled ballots. The majority inserted some language to try to guard against such challenges, but the logic of Bush v. Gore surely favors them. In seeking to justify its decision, the majority placed almost total reliance on Reynolds v. Sims and other examples of what it now terms the Warren Court’s “one person, one vote jurisprudence.” Those decisions ignored the text, history, and structure of the Constitution and dealt a grievous blow to conservative politics in America; they are hardly building blocks for a truly conservative jurisprudence.
Nor was the opinion of Chief Justice Rehnqiust, joined by Justices Scalia and Thomas, particularly heartening. The Court’s conservative bloc also relied on Warren Court jurisprudence to justify their willingness to overturn the Florida Supreme Court’s interpretation of Florida law.
Having invoked the shade of Earl Warren, the conservative trio also claimed to be vindicating the Florida legislature and federalism. But surely the cause of federalism would have been better served if the Florida legislature had vindicated its own rights by appointing the slate of electors that had been chosen according to the statutory’ scheme created by the legislature. It is true that this route may have produced two slates of electors from Florida, but that is not a constitutional problem. If Florida’s legislature had certified one set of electors and Florida’s Supreme Court had tried to certify another. Congress—as the Constitution provides—would have resolved the dispute and almost certainly would have agreed with the Florida legislature. This result would have strengthened the cause of federalism, reaffirming The Framers’ view that political decisions should be made by the political branches, and proving that a state legislature can still defend itself from the local arm of the imperial judiciary. Instead, Bush v. Gore demonstrates that, in contemporary America, all issues are to be resolved by the judiciary—particularly the federal judiciary.
If there is one reason to be encouraged by this decision, it is all the hypocritical, liberal posturing about judicial activism. The day before the U.S. Supreme Court ruled, the New York Times devoted practically its entire editorial page to phony worries about judicial activism, including its own plea that the justices issue a decision that “preserves respect for Supreme Court justices as referees who are able to rise above their political loyalties.” Justice Breyer raised similar concerns in his dissent, piously chastising the majority for running “the risk of undermining the public’s confidence in the Court itself”
Not that the New York Times and Justice Breyer have rejected past cheerleading for Roe v. Wade and the like, suddenly discovering the virtues of federalism and judicial restraint. They recognize that no institution has done more to advance the leftist agenda in the last 40 years than activist courts, and an indispensable element of this strategy has been the public’s willingness to treat the latest pronouncement of the Supreme Court as the equivalent of tablets being brought down from Sinai. If Americans do begin to take a more critical look at the Supreme Court, that will be far more beneficial to conservatism than the thin gruel the second Bush administration is likely to serve up.