The Legitimacy of the Courts

Bush v. Gore

Column by Bruce Fein rebuffs the charge that the Court’s 5-4 split in Bush v. Gore shows partisanship: “Razor-thin majorities are commonplace, especially in demanding and impassioned litigation,” such as school prayer. Fein asserts that, contrary to the opinion of detractors, the decision respects the court’s federalism jurisprudence by protecting the Florida legislature from the invasion of its constitutional duties by the state supreme court. He concludes that “in sum, the world-riveting case proved one of the court’s finest hours . . . and confirmed that our independent federal judiciary is a precious jewel in our constitutional crown.” Bruce Fein, Column, Misguided Detractors, Washington Times, December 19, 2000.

Op-ed by Anthony Amsterdam, Professor of Law at New York University, blasts the U.S. Supreme Court: “The important point to notice in the presidential election case is not . . . the sickening hypocrisy and insincere constitutional posturing with which the court’s foray into president-making is dressed up. It is that the court finally has revealed unmistakably what it does all the time . . . making result-driven, political, unprincipled decisions in the guise of obedience to [highly malleable] rules of law.” Anthony Amsterdam, Op-ed, The Law Is Left Twisting Slowly in the Wind, Los Angeles Times, December 17, 2000.

Op-ed by Akhil Amar, Professor of Law at Yale Law School, scrutinizes the Court majority’s equal protection argument against the manual recount. Amar contends that, from the standpoints of both history and logical necessity, the Court’s decision would place the constitutionality of every election conducted in the United States in doubt. He finds that the ultimate lesson proffered by Bush v. Gore is “Put not your trust in judges.” Akhil Amar, Op-ed, Should We Trust Judges, Los Angeles Times, December 17, 2000.

Editorial advises President-elect George W. Bush, in light of Bush v. Gore, to appoint moderates to the Supreme Court: “The . . . decision that gave . . . Bush the White House also circumscribed the kind of judges Bush can expect to successfully appoint. . . . It would be unwise . . . for Bush to expend large amounts of political capital trying to push strict conservatives onto the Supreme Court. . . . He should ignore calls from congressional Republicans to stack the court with idealogues.” Editorial, A Time for Moderate High Court Nominees, Austin American-Statesman, December 16, 2000.

Syndicated columnist Maggie Gallagher argues that with Bush v. Gore, liberals have lost their “personal secret weapon,” the courts. Arguing that liberals have used the courts to subvert the will of “the Judeo-Christian majority,” Gallagher proclaims “If Democrats [now] want to threaten the . . . authority of the Supreme Court -- the very authority they depend on for forcing the rest of us to accept abortion on demand [and] gay marriage . . . -- I say let ’em.” Maggie Gallagher, Column, Liberals Aren’t Used to Losing in Court, Detroit Free-Press, December 15, 2000.

Op-ed by Randy E. Barnett, Professor of Law at Boston University, interprets Justice Stevens’ statement that the public’s confidence in the judiciary will suffer as a result of Bush v. Gore. Barnett argues that, by considering the whole of Stevens’ opinion, one understands that Justice Stevens was referring to the Florida high court, not the U.S. Supreme Court. According to Barnett, Justice Stevens is warning that Bush v. Gore is a slap at the legitimacy of all state judiciaries. Randy E. Barnett, Op-ed, Are Judges a Casualty of the Florida Recount?, Miami Herald, December 15, 2000.

Column chastises the Florida Bar for “default[ing] pitifully on its obligation to uphold the integrity and independence of Florida’s judiciary.” The columnist complains that “the Bar’s passivity has invited massive assaults on the independence of the judiciary” including proposals for court reform that are “fundamentally opposite to the traditional American rule of law.” Martin Dyckman, Column, Tarnishing the Courts, St. Petersburg (Fla.) Times, December 15, 2000.

Analysis by Linda Greenhouse argues that the U.S. Supreme Court’s legitimacy has been left in doubt by its recount decision. One federal judge, a Republican appointee and former Supreme Court law clerk, said that, while he expected the justices to be “making it up as they go along,” he found Tuesday’s decision surprising: “it just seemed so politically partisan.” Greenhouse finds “baffling . . . [the decision’s] simultaneous creation of a new equal protection right not to have ballots counted according to different standards and its disclaimer that this new constitutional principle would [never] apply in another case.” Linda Greenhouse, Another Kind of Bitter Split, New York Times, December 14, 2000.

Op-ed by Neal Katyal, Associate Professor of Law at Georgetown Law Center and legal consultant for the Gore campaign, argues that the U.S. Supreme Court’s decision to prevent the Florida manual recount was a politically-motivated act that will severely weaken the Court’s standing among federal institutions. He predicts that Senate filibusters will prevent Court vacancies from being filled, that lower courts will ignore the high court’s decisions, and that those arguing before the Court in the future will have to act like lobbyists. Neal Katyal, Politics over Principle, Washington Post, December 14, 2000.

Column advises President-elect George Bush to appoint only moderates to the federal bench. The columnist asserts that in the wake of the U.S. Supreme Court decision to stop the Florida manual recount, the Court is no longer respected as an impartial body. He warns that, as a result, nominating justices in the mold of Justices Scalia and Thomas “will tear this country apart.” Robert Scheer, Column, Never Again Will We View the Judiciary as Nonpolitical, Los Angeles Times, December 14, 2000.

Op-ed by David Dow, Professor of Law at the University of Houston Law Center, charges that, by stopping Florida’s manual recount, the Rehnquist Court’s “legacy will be that it punctured the myth that the court is above politics.” In Dow’s view, the Court erred in agreeing to hear Bush’s case: “because the result of the . . . election was a statistical tie, it was foreordained that any action by the court, short of unanimity, would be perceived as partisan.” David Dow, Op-ed, Biggest Loser is the Supreme Court’s Legitimacy, Houston Chronicle, December 14, 2000.

Syndicated columnist George Will argues that the role of the judiciary
in the Florida controversy should begin “a new chapter in America’s political argument . . . Until now, the central question . . . has been: How much government do we want? . . . But now that question . . . should be supplanted . . . by this question: What should be the principal source of government -- the judiciary or the political branches?” Will asserts that, whatever one thinks of the Florida Supreme Court’s decision, “the problem with American governance today is what has become normal in the name of judicial interpretation.” George Will, Column, Judicial Activism on Trial, Washington Post, December 13, 2000.

Op-ed by Stuart Taylor, Jr. contends that “judicial hubris,” such as that practiced by the Florida Supreme Court in allowing manual recounts, will prompt a conservative backlash that will corrode judicial independence in the name of accountability. Taylor opines that as a result, more state judges will be forced to participate in degrading judicial elections and that “in Washington, it may become virtually impossible for judicial nominees who are not ciphers to win Senate confirmation. [Moreover,] we may see a new era of congressional -- and perhaps presidential -- efforts to strip the federal courts of power.” Stuart Taylor, Jr., Op-ed, The Dangers of Judicial Hubris, Slate, December 11, 2000.

The Impact on Democracy

Column by Morton Kondracke seeks to temper conservative praise for Bush v. Gore: “When an activist conservative High Court trumps an activist liberal state court, it may be legal, but it’s not in the spirit of the Constitution.” As a result of the decision, he predicts that Bush will face difficulty with “any High Court nominations he makes” and that “the public’s distrust of the judiciary will be concentrated on the Supreme Court, concealing the increasing crisis of state courts . . . where money and influence from trial lawyers dominate judicial selection and retention.” Morton Kondracke, Column, ‘Rule by Judge’ Means U.S. System Is Not Working, Roll Call, December 14, 2000.

Column charges that, in stopping the Florida recount, the U.S. Supreme Court “stopped democracy.” The columnist contends that the differing standards for evaluating valid ballots of Florida counties by hand is far less troubling than the difference in quality of voting machines for wealthy, white areas and those for poor, minority-populated, areas. He asserts that only political motives prevented the Court majority from adopting Justice Souter’s recommendation for a state-wide recount to finish before Dec. 18, when the electors of each state will meet to determine the result of the Presidential election. Gary Kamiya, Column, Supreme Court to Democracy: Drop Dead, Salon, December 14, 2000.

Column by Michael Kelly disputes the characterization of the U.S. Supreme Court’s 5-4 decision to stop the Florida recount as “a partisan and ideological assault on democracy.” For Kelly, “the heart of the decision . . . is found in two sentences from the majority decision: ‘seven justices of the court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court. . . . The only disagreement is as to the remedy.” Michael Kelly, Column, Democracy Rescued, Washington Post, December 14, 2000.

Op-ed charges that in the U.S. Supreme Court recount decision, “the tree won and the forest lost.” It asserts that the holding is “an open invitation for any state legislature that is not happy with the state’s popular vote to substitute its will for that of its citizens.” Nancy Skinner, Op-ed, Cloudy Thinking, Chicago Tribune, December 14, 2000.

Op-ed by Samuel Issacharoff, Professor of Law at Columbia Law School, argues that the U.S. Supreme Court’s recount decision’s “lasting significance . . . is likely to be the reinvigoration of the line of cases from the 1960s that deemed voting a fundamental right.” Issacharoff asserts that the 7 justices who “condemned the disturbing, standardless hand recounts . . . have broadened constitutional protections for the right to vote.” Samuel Issacharoff, Op-ed, The Court in the Crossfire, New York Times, December 14, 2000.

Interpretation v. Legislation

Column criticizes Bush v. Gore as reliant upon “an inconsistent and nearly incomprehensible set of arguments.” The columnist affirms the opinion of Robert Post, Professor of Law at the University of California, Berkeley, that the majority opinion’s equal protection argument is “a confession of bankruptcy.” Peter Schrag, Column, Dred Scott Echoes: Court’s ‘Self-Inflicted Wound’, Sacramento Bee, December 15, 2000.

Op-ed by Margaret Burnham, former attorney and judge, laments that Bush v. Gore “places the undiluted ideological nature of the hyper-activist Rehnquist court on naked display.” In Burnham’s view, the court “overrode hundreds of precedents giving primacy to state court interpretations of state law” and relied on “reasoning worthy of Dickens’ Bleak House” to prohibit a manual recount. Margaret Burnham, Op-ed, A Cynical Supreme Court, Boston Globe, December 14, 2000.

Op-ed by Douglas Kmiec, Professor of Law at Pepperdine University and legal consultant to the Bush campaign, defends the U.S. Supreme Court decision to stop Florida’s manual recount as “a soundly reasoned per curiam voice of restraint.” Kmiec opines that “probably the most common-sensical contribution of the U.S. Supreme Court . . . was to bring to light nationwide statistics revealing that . . . 2% of ballots cast do not register a vote for president. . . . [Undervotes are] simply a fact, not a basis for reversing the outcome of a national election.” Douglas W. Kmiec, Op-ed, The Court’s Decision is Law, Not Politics, Los Angeles Times, December 14, 2000.

Syndicated columnist E.J. Dionne, Jr. finds that the “most troublesome aspect of [the U.S. Supreme Court’s recount decision] is . . . that the [majority] chose to intrude in Florida’s election process having always claimed to be champions of the rights of states and foes of ‘judicial activism’ and ‘judicial overreach.’” Citing Justice Stephen Breyer’s dissent, Dionne contends that the decision would disallow any “state provision for a manual recount of individual counties in a statewide election.” E.J. Dionne, Jr. Column, So Much for States’ Rights, Washington Post, December 14, 2000.

Column excoriates Justice Antonin Scalia for stopping the Florida recount: “First he stops the counting of votes and then he argues against their resumption because there is no longer time to get it done. Devilishly brilliant, no?” The columnist asserts that “there was a time when the judges were expected to soar above personal political prejudice, defying the demand of party in the service of exalted principles of law. No more.” Robert Scheer, Column, Villiany, Thy Name is Antonin Scalia, Los Angeles Times, December 12, 2000.

Column by syndicated columnist Robert Novak opines that the U.S. Supreme Court’s ruling preventing the Florida manual recount “was drenched in irony. The court that so often has been the engine of judicial activism decided, 5-4, to move against a blatantly activist foray into election politics.” Novak proclaims that one of the “great pillars of liberalism in America . . . now seems cracked.” Robert Novak, Column, Icon Shakes Liberal Faith, Chicago Sun-Times, December 12, 2000.

Attacks on the Judiciary

Op-ed by Mark Tushnet, professor of constitutional law at Georgetown University Law Center, decries the U.S. Supreme Court’s decision to review the Florida election dispute: “Simply taking up the case reflects the inflated role the court has come to play in our political life. The justices think that, no matter what the precise legal issues are, what they have to say will make a positive contribution to our public life.” While Tushnet asserts that many politicians are happy to see the dispute taken out of their hands, he argues that “[n]othing the court says . . . can do much to move us toward a resolution. Only politicians who can devise political compromises -- create a bipartisan cabinet, work with political opponents to forge public policies in a closely divided Congress -- can do that.” Tushnet concludes that rather than “seeing our problem as political, we have converted it into a question of highly technical constitutional law.” Mark Tushnet, Op-ed, Higher and Higher, New York Newsday, December 3, 2000.

Op-ed by Chuck Clay, chairman of the Republican Party of Georgia, warns of “a very slippery slope started down by the courts in Florida.” The Florida Supreme Court’s decision to extend the certification deadline for the state’s presidential balloting “is judicial activism to the extreme.” Clay concludes by asserting that the Florida situation must not become the norm for the nation: “Do we truly want to have a day where elections no longer reflect any finality, but are merely a stepping stone to legal action and challenges in the courts throughout the states? This is not only unacceptable for political reasons, but it also would create turmoil throughout the nation because of the uncertainty it would create.” Chuck Clay, Op-ed, Judicial Activism: Setting a Dangerous Precedent, Atlanta Journal-Constitution, November 30, 2000.

Column finds prescient, in light of Florida’s electoral debacle, a controversial 1996 symposium in the conservative journal First Things, in which contributors such as Judge Robert Bork asserted that judicial activism has so corrupted the separation of powers and national values that citizens “can no longer give moral assent to the existing regime.” The symposium prompted a “vicious row among rightist intellectuals,” many of whom doubted the purported threat to legitimacy. Concerning the current situation, Rev. Richard John Neuhaus, editor of First Things, comments: “This may convince a lot of people that we were by no means playing Chicken Little. There has arrived a moment when a genuinely supine population has to face the question of whether they care about self-government.” William Kristol, publisher of the Weekly Standard, who was initially wary of the symposium’s strong positions, now concurs: “The key . . . is to turn the outrage of the moment into a sustained political attempt to put courts back in their proper role.” Rod Dreher, Column, Our Democracy is Courting Trouble, New York Post, November 29, 2000.

Op-ed by Thomas L. Jipping, director of the Free Congress Foundation’s Center for Law and Democracy, asserts that “Americans owe a debt of gratitude to the Florida Supreme Court. Its November 21 hostile takeover of Florida election law did more to expose freedom-busting judicial activism than a steady stream of columns, seminars, documentaries, courses and books ever could.” Jipping argues that, while “[t]he sneering liberal media and arrogant legal establishment have tried for years to pretend the problem does not exist . . . the Florida Supreme Court’s decision . . . cut through the cover-up and spin, exposing judicial activism as perhaps the biggest threat to self-government and ordered liberty.” Thomas L. Jipping, Op-ed, Government by Judges, The Washington Times, November 29, 2000.

Analysis argues that Gov. Bush’s case before the U.S. Supreme Court may represent the latest development in “a long-term attack on judicial independence.” Herman Schwartz, Professor of Law at American University, identifies Bush’s case as “an attempt ‘to delegitimize the judiciary’ that goes back to . . . the 1960s, when conservatives and segregationists . . . sported ‘Impeach Earl Warren’ bumper stickers on their cars.” Bush’s brief alleges that the Florida Supreme Court’s decision to extend the recount deadline was an instance of judicial “legislation,” while Vice-President Gore’s brief contends that the opinion was “an unremarkable construction of state statutes and state constitutional provisions.” Prof. Schwartz agrees: “If [the Justices of the Supreme Court] accept the Bush argument . . . it would mean you can’t trust any state court to interpret a state’s laws. They’d be undermining their own ability to interpret law.” Bruce Shapiro, Why the Supreme Court Case Matters, Salon, November 29, 2000.

Syndicated columnist George Will denounces the Florida Supreme Court manual recount decision as part of the lineage of judicial decisions that “settle protracted disputes by judicial fiat.” He asserts “Florida’s is not the first Supreme Court to become impatient with the political branches of government. . . . The U.S. Supreme Court did so 143 years ago, regarding slavery, and 27 years ago regarding abortion. The Dred Scott case presaged civil war. The embitterment of American politics by Roe. v. Wade continues.” He concludes that the U.S. Supreme Court’s reversal of the state court decision “would be an appropriate end to an election in which the most important policy difference between the candidates concerned the kind of judges they would nominate.” George Will, Column, Florida’s Rogue Court, Washington Post, November 28, 2000.

Op-ed by William Kristol laments “the trial-lawyerization of our electoral

politics.” Kristol disagrees with pundits, both conservative and liberal, who believe that “only the courts, especially the United States Supreme Court, have the political legitimacy to resolve the struggle over the presidency.” He charges that “decades of judicial activism . . . [have] undermined the rule of law and enfeebled self-government.” Decrying the Florida Supreme Court’s decision concerning hand recounts as “foolish over-reaching,” Kristol worries that the U.S. Supreme Court may not correct the state court’s mistake and advises the Florida legislature to stand ready to intervene. He concludes that “the present crisis suggests that [compared to compassionate conservatism] a revival of constitutional conservatism is the more urgent and more important task.” William Kristol, Op-ed, Crowning the Imperial Judiciary, New York Times, November 28, 2000.