Baseball Crank
Covering the Front and Back Pages of the Newspaper
May 26, 2003
LAW/POLITICS: Judges And Politics

Josh Marshall, who's been hung up on redistricting in Texas lately, argues:

Many of those who are defending -- professionally or otherwise -- the DeLay power-grab are arguing that courts simply should not be involved in drawing congressional maps, period. . . . we have an established system and DeLay & Co are changing it . . . the courts-out-of-elections mantle hangs rather heavy on a crew whose president owes his office to a judicial ruling.

Hmmmm. Dr. Marshall's memory of Florida 2000 is rather selective indeed if he expects us to believe that Al Gore would have won Florida if only the courts hadn't gotten involved! For those who have forgotten: there was a long established practice in presidential races of respecting the Election Day outcome, even when (as was the case in 1960 but not in 2000) there were credible bases to believe there had been fraud by the winning party. It was the Bush camp that argued all along that the courts shouldn't be involved in picking presidents, and it was the Gore team that pushed at every turn for a larger role for the court system, including asking the courts to disregard express statutory language enacted by the Florida Legislature and to disregard rulings of the Florida Secretary of State, to whom substantial authority was delegated under the Florida statutes.

In a similar vein, Yale law professor Jack Balkin has been arguing on his blog lately that Democrats are justified in breaking down traditional barriers in another way -- by filibustering appellate court nominees on purely ideological grounds -- because of their anger over Bush v. Gore. Balkin makes the hypocrisy/inconsistency charge a centerpiece of his argument that

[t]he five conservatives were the least likely, one would think, to extend the Warren Court's equal protection doctrines in the area of voting rights. Indeed, one member of the majority, Justice Scalia, is on record as opposing novel interpretations of the Equal Protection Clause that undermine traditional state practices. It is hard to imagine that if the parties had been reversed-and Vice-President Gore had been ahead by 537 votes-the five conservatives would have been so eager to review the decisions of a Republican Florida Supreme Court that was trying to ensure that every vote had been counted. The unseemliness of Bush v. Gore stems from the overwhelming suspicion that the members of the five person majority were willing to make things up out of whole cloth-and, equally importantly, contrary to the ways that they usually innovated-in order to ensure a Republican victory . . . The Justices could have avoided the appearance of a conflict of interest by simply remaining out of the fray . . .

(emphasis added). The quotation is from a Virginia Law Review piece by Balkin and Prof. Sanford Levinson.

Of course, "traditional state practices" is precisely what was not at issue in Bush v. Gore; the central and inescapable fact about the case is that it involved the Court's review of a judicial remedy, one crafted after the election, without any statutory basis, without precedent in history, and without anything but arbitrary standards to guide its implementation. I've posted here my reaction to Bush v. Gore written the day after it was decided, and the more I read about the case, the more I stand by my initial gut reaction to the decision; here's the key excerpt:

"[T]he Court went out of its way to limit this to the facts at hand, and to show how the current system wasn't so much discriminatory as it was lacking in any rational basis. Far more to the point, as far as consistency with conservative principles is concerned, the Court made clear that its decision does not (at least on its face) apply to the conduct of elections generally ("The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections"). Rather, the Court's decision focuses in on, and arguably applies a higher standard for, judicial proceedings to review elections ("[W]e are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied") (emphasis added). The net result is to counsel state as well as federal courts to be more circumspect in the future in ordering remedies in election cases where the remedy has not been explicitly set out in advance in a statute. It is this aspect of the decision that essentially constitutionalizes the James Baker Doctrine: you can't go to court to change the rules after the election."

In that sense, the Court's decision is deeply and profoundly conservative, and it is not surprising at all that the conservatives on the Court would have found the Florida court's approach so troubling, and so hazardous in its gravtitational pull of courts into what Balkin calls the "low politics" of partisan side-taking. By imposing a higher standard of scrutiny on post hoc judicial remedies in election cases, the Court has (admittedly, at some cost to its own short-term credibility with the public) erected a barrier to the use of courts, state or federal, in such adventures in "low politics" in the future.

As to the idea that the Justices could have "remain[ed] out of the fray" -- that's an awfully convenient bit of ledgermain, given that the matter had already been pushed into the court system. This is why I find it particularly laughable that some commentators have invoked the political question doctrine in this context: the doctrine says that some issues are just not suitable for courts to resolve. How can you apply that to say that courts can not review what are judicially crafted remedies in the first place?

What was clear to me at the time -- something that should have been familiar to any practicing litigator, though perhaps less so to a law professor -- was the extent to which the Court was reacting to the procedural posture of the case and the behavior of the court below.

The Court, particularly Justice O'Connor, acted as if they saw the antics of the Florida Supreme Court as being irresponsible and unprecedented; the Court's view in its second decision in the case clearly appeared to be colored by the Florida Supreme Court's insistence on rewriting the deadlines for the protest phase in its initial decision. Balkin, in a Yale Law Review piece on the case, dismisses this possibility mostly on the grounds that the Court did not level any accusation of "invidious motive" at the lower court - but such things are commonly unsaid in appellate opinions that reek of mistrust of a runaway court below.

Consider this exchange, from the oral argument:

BOIES: ... I think, at that point, then you can conclude that what it has done is it's changed the law. But I think the standard is the standard this court has generally applied in giving deference to state supreme court decisions.

O'CONNOR: But is it, in light of Article II? I'm not so sure. I mean, I would have thought that that bears on the standard, frankly, when it contemplates that it is plenary power in the legislature. Does that not mean that a court has to, in interpreting a legislative act, give special deference to the legislature's choices insofar as a presidential election is concerned? I would think that is a tenable view anyway, and especially in light also of the concerns about Section 5.

BOIES: I think, Your Honor, that if the Florida Supreme Court, in interpreting the Florida law, I think the court needs to take into account the fact that the legislature does have this plenary power. I think when the Florida Supreme Court does that, if it does so within the normal ambit of judicial interpretation, that is a subject for Florida's Supreme Court to take.

O'CONNOR: I'm sorry. You are responding as though there were no special burden to show some deference to legislative choices in this one context. Not when courts review laws generally, for general elections, but in the context of selection of presidential electors, isn't there a big red flag up there, "Watch Out"?

BOIES: I think there is in a sense, Your Honor. And I think the Florida Supreme Court was grappling with that.

O'CONNOR: You think it did it properly?

BOIES: I think it did do it properly.

O'CONNOR: That's, I think, a concern that we have. And I did not find, really, a response by the Florida Supreme Court to this court's remand in the case a week ago. It just seemed to kind of bypass it and assume that all those changes in deadlines were just fine, and they'd go ahead and adhere to them. And I found that troublesome.

O'Connor, remember, was a state legislator herself; it is unsurprising that she would be particularly offended by the cavalier attitude of the Florida Supreme Court towards state statutes. And as I've noted before, the Court was wise to be more skeptical than usual of the state court below, because the siren song of what Balkin calls "low politics" is all the stronger when a state court's decision will have an impact that reaches outside its own state.

Getting back to Balkin . . . oddly, the Balkin-Levinson Virginia Law Review piece 's reference to "traditional state practices" cites in a footnote to Scalia's dissent in the case regarding admission of women to the Virginia Military Institute - which is very much a case where the federal courts sought to change traditional practices of long standing in a state, rather than simply prevent a judicial remedy forged after the fact from creating its own new reality. In other words, it's a red herring.

In fact, the Virginia Law Review piece says little about the substance of Bush v. Gore at all; for that, you need to go to Balkin's Yale Law Review article. The Yale piece goes in some detail on the Florida statutory arguments, and I won't rehash all that here; it's sufficient to note that I've discussed another law review piece at some length that I found a good deal more persuasive on the matter. (Either way, it is clear that the questions of Florida law can not be separated from the federal constitutional issues).

But the guts of Balkin's argument, and the core of his disagreement with both the majority and the concurring Justices, is his insistence that the Court drew an improper distinction between state courts and state legislatures, while failing to give adequate respect to the difference between state law and federal law. Which is why his protests are ultimately so ironic. Because if Bush v. Gore has any lasting impact on the law, it will be - as Justice Stevens recognized - to draw more firmly a line that places state and federal courts on one side, and legislatures on the other, and a "Do Not Cross" sign in the way of courts of all types. And for anyone concerned about keeping courts out of elections, that's a good thing.

Posted by Baseball Crank at 8:53 AM | Law 2002-04 • | Politics 2002-03 | Comments (5) | TrackBack (0)

Great post. It is conveniently forgotten by many just how brazen and over-reaching that Florida Supreme Court decision was and it is a fact which needs to be repeated over and over again. I think the members of the Supreme Court wanted to weigh in on the presidential election about as much as most of us want to walk through minefields. The Florida Supreme court left them with a devil's alternative.

Posted by: The Mad Hibernian at May 27, 2003 11:51 AM

What a remarkable misunderstanding of the facts.

Ordering all the votes to be counted was "brazen and over-reaching"?

And need I remind you that it was Bush who went to his daddies friends on the SCOTUS?

Alas, nothing like a Conservative if you're looking for a textbook example of selective blindness.

Posted by: John Yuda at May 27, 2003 2:35 PM

I was referring to the Florida Supreme Court's decision to re-write the state's legislatively-enacted election laws after the election had been held.

And the Bush camp's decision to appeal that court's decision was a no-brainer. Any litigant will appeal a lower court decision that they feel has grossly misinterpreted or even flouted the law.

Finally, I don't know who you mean by Bush's "daddies friends" on the Court. The first President Bush appointed Justices Souter and Thomas, as I recall, and they split down the middle on this case.

Posted by: The Mad Hibernian at May 27, 2003 3:21 PM

'course, this would all be a moot point if Jeb hadn't removed several thousand likely democrat voters from the voting rolls illegally.

Posted by: John Yuda at May 28, 2003 9:47 AM

I really wish I had more time at the moment to thoroughly recount (err, bad choice of words) the whole Florida escapade. I'm fully aware that that is a cop out, but needless to say I disagree with your allegations and interpretations. I also honestly believe that the Republican position on the Florida recount was correct intellectually, legally and morally.

That said, one thing should be beyond debate: the 2000 election was a freak of nature statistically. By any measure, it was close to an almost impossible degree and whichever side lost was bound to feel cheated. Gore won the electoral vote by a sliver nationally and, as measured by pre-existing Florida election law, Bush won the vote in Florida by an even smaller sliver. Just because he lost does not mean Gore was not cosmically unlucky.

The main reason I liked this post by the Crank was because it did some of the leg work in reminding people what the Republican side of the argument was. Because the ball eventually bounced their way, Republicans don't spend much time arguing about Florida anymore but they should not allow the Democratic arguments and complaints to exist in a total vacuum.

Posted by: The Mad Hibernian at May 29, 2003 9:06 AM
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