November 29, 2010
ULTIMATELY, THE ONLY THING THE CASE DECIDED...:
Precedent And Prologue (Jeffrey Toobin, December 6, 2010, The New Yorker)
Momentous Supreme Court cases tend to move quickly into the slipstream of the Court’s history. In the first ten years after Brown v. Board of Education, the 1954 decision that ended the doctrine of separate but equal in public education, the Justices cited the case more than twenty-five times. In the ten years after Roe v. Wade, the abortion-rights decision of 1973, there were more than sixty-five references to that landmark. This month marks ten years since the Court, by a vote of five-to-four, terminated the election of 2000 and delivered the Presidency to George W. Bush. Over that decade, the Justices have provided a verdict of sorts on Bush v. Gore by the number of times they have cited it: zero. [...]To return briefly to the distant world of chads, hanging and otherwise, it’s worth recalling what Bush v. Gore was about. The pervasive uncertainty about the results of the election in Florida—at the time, Bush led by five hundred and thirty-seven votes out of nearly six million cast—prompted the Florida courts, interpreting Florida election law, to order a statewide recount of all undervotes and overvotes; that is, ballots that indicated no Presidential preference or more than one. (Chads were the tiny paper rectangles that voters were supposed to push through punch-card ballots.) That recount had already begun on Saturday, December 9th, when five Justices—Scalia, William H. Rehnquist, Sandra Day O’Connor, Anthony M. Kennedy, and Clarence Thomas—issued a stay, barring the Florida authorities from continuing their labors. Three days later, the same five issued the per-curiam decision that stopped the recount once and for all.
What made the decision in Bush v. Gore so startling was that it was the work of Justices who were considered, to greater or lesser extents, judicial conservatives. On many occasions, these Justices had said that they believed in the preëminence of states’ rights, in a narrow conception of the equal-protection clause of the Fourteenth Amendment, and, above all, in judicial restraint. Bush v. Gore violated those principles. The Supreme Court stepped into the case even though the Florida Supreme Court had been interpreting Florida law; the majority found a violation of the rights of George W. Bush, a white man, to equal protection when these same Justices were becoming ever more stingy in finding violations of the rights of African-Americans; and the Court stopped the recount even before it was completed, and before the Florida courts had a chance to iron out any problems—a classic example of judicial activism, not judicial restraint, by the majority.
Bush v. Gore would resonate, in any case, because the Court prevented Florida from determining, as best it could, whether Gore or Bush really won. (Recounts of the ballots by media organizations produced ambiguous results; they suggest that Gore would have won a full statewide recount and Bush would have won the limited recount initially sought by the Gore forces.)
...was whether a state supreme court should be allowed to engage in judicial activism--in this instance, dictating electoral processes to a state's elected officials--or whether the federal supreme court can stop them. While you can see why it is tempting for liberals to taunt the Court's conservatives for ignoring their usual concern for states' rights, the history of such rights necessarily makes advocates supporters of popular politics in the states rather than the judiciary.
