Bush v. Gore Comes Back

This essay originally appeared in The New York Sun.

As if the flames of Bush hatred were not burning brightly enough, the October issue of Vanity Fair seeks to fan them by revisiting Bush v. Gore, one of their original sources, and providing more proof that the U.S. Supreme Court’s momentous opinion was a crude partisan act. The scoop in “The Path to Florida” involves the decision by a number of the law clerks for the dissenting justices – and a few clerks for the more conservative justices – to break their solemn signed vows of confidentiality and speak for the record, though anonymously, about the court’s internal deliberations.

Little of interest is offered in the way of legal analysis of the court’s majority decision, which held that the Florida recount violated the 14th Amendment’s equal protection clause by applying different rules to the evaluation of identically marked ballots. But the clerks’ angry accusations of gross partisanship do raise questions about their own capacity to set partisanship aside.

The left-leaning clerks took the extreme step of violating their oaths because, as one of them explained, “We feel that something illegitimate was done with the Court’s power, and such an extraordinary situation justifies breaking an obligation we’d otherwise honor.” And yet what new ground the clerks have broken with their vitriolic recollections tends to discredit their judgment. For their comments show that they disliked the conservatives at the court and did not respect their views before the election controversy erupted.

They show that the left-leaning clerks had made up their minds about how the legal issues concerning the decisions by the Florida Supreme Court should be resolved before examining the facts and the law. And they show that what became the conventional wisdom about the alleged flagrant deficiencies of the legal reasoning of the majority had congealed in the clerks’ minds even before the opinion was written.

Vanity Fair suggests that to understand how the clerks reacted to Bush v. Gore you have to know how the best law students in the land today are educated. Unfortunately, “The Path to Florida” inverts the truth about their education. It reports that the more left-leaning clerks had arrived at the court as “idealists” who “learned in their elite law schools that the law was just and that judges resolved legal disputes by nonpartisan analysis of neutral principles.”

In fact, elite law schools teach that such a view is a fairy tale. By the end of the first year, students at top law schools typically have internalized the lesson that law is about power, that judges, especially justices of the U.S. Supreme Court, decide cases on the basis of their political predilections, and that their legal arguments seldom involve more than after-the-fact rationalizations.

Given such an education, it would only be natural for an elite-trained young lawyer, confronted with an outcome he or she found outrageous, to see only power and outrageous political opinions behind it, because power and politics are what they are taught generally lies behind legal decisions.

That teaching, however, distorts the reality of the law and impairs the capacity of future lawyers to take legal materials seriously. This helps explain how the left-leaning Bush v. Gore law clerks could adamantly denounce the court’s equal protection holding as a partisan fantasy with no basis in fact or law. Put aside that Justices Breyer and Souter in dissent agreed with the majority that the Florida recount gave rise to problems that implicated the equal protection clause. More significantly, the majority’s equal protection argument was not novel. Indeed, it was forthrightly asserted by three of the seven members of the Florida Supreme Court, all of whose members were Democratic appointees.

In Florida, Chief Justice Wells, in his dissenting opinion on the question of the recount, had no doubts about the ultimate outcome of the case: “Continuation of this system of county-by-county decisions regarding how a dimpled chad is counted is fraught with equal protection concerns which will eventually cause the election results in Florida to be stricken by the federal courts or Congress.” And in a separate dissent, Justice Harding, joined by Justice Shaw, made clear that the recount ordered by the Florida court “would violate other voters’ rights to due process and equal protection of the law under the Fifth and Fourteenth Amendments to the United States Constitution.”

Could there be a stronger presumption for believing that the majority opinion in Bush v. Gore was not a crude partisan act but rather a judgment with a respectable grounding in law than the fact that it was vigorously advanced by three Democratic appointees on the Florida Supreme Court?