"Equal Protection, My Ass!"? Bush V. Gore and Laurence Tribe's 'Hall of Mirrors.'(response to Laurence Tribe, Harvard Law Review, Vol. 115, P. 170, 2001)

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Almost every lawyer with litigation experience, even if only in law school moot court exercises, has experienced what might be called "acquired conviction syndrome." Having taken on a client's cause, and worked hard to develop the best arguments in support of that cause, one often finds oneself increasingly persuaded that the weight of the arguments supports the client's position. This can easily happen even if one began by thinking that the case was almost certainly a loser. The prevalence of acquired conviction syndrome provides a good reason for the custom of disclosing one's own involvement in cases on which one later offers academic commentary. This custom certainly doesn't imply that such commentary deserves to be dismissed, or even depreciated, but it does alert the reader to the advisability of assessing the work with a little extra caution.

A very lengthy essay by Laurence H. Tribe--eroG v. hsuB and its Disguises: Freeing Bush v. Gore from its Hall of Mirrors (1)--reaches the following considered conclusion about the Court's holding in that case: "EQUAL PROTECTION, MY ASS!" (2) Notwithstanding Professor Tribe's vulgar expression of contempt for the Court, his essay is extremely sophisticated. It deserves to be read carefully, though with due regard for the fact that he was deeply involved, as one of Gore's lawyers, in the litigation that culminated in the Supreme. Court's decision in Bush v. Gore. Professor Tribe recognizes this, of course, and rightly says of his effort to offer a "more balanced" account than others have provided that "the proof of that pudding will have to be in the eating." (3) My own comments--which will be a great deal more concise, (4) and less autobiographical (5)--should also be read with caution. Although I was not directly involved in the litigation, I published several short pieces about the Florida election dispute while it was going on, and immediately after it was resolved. (6) And I wanted Bush to become President, perhaps almost as much as Professor Tribe wanted Gore to win.

Much of Professor Tribe's essay is taken up with responses to other commentators, analysis of Chief Justice Rehnquist's concurrence, and other matters that are peripheral to the central question of the legal merits of the Court's decision and opinion. Much of this extra material is quite unexceptionable, but its daunting volume and dazzling intricacy may easily distract the reader's eye from the absence of any solid arguments that can support Professor Tribe's two principal conclusions about the decision in Bush v. Gore. Those two conclusions can be stated very simply: the Court's equal protection ruling was untenable as a matter of law, and the case in any event was technically nonjusticiable. (7) And on the basis of these conclusions, Professor Tribe renders this further verdict: the five "Justices in the Bush v. Gore majority have Little but disdain for Congress as a serious partner in the constitutional enterprise, and not much patience with 'We the People' as the ultimate source of sovereignty in this republic." (8)

Those conclusions are genuinely indefensible, and Professor Tribe is forced to rely entirely on sleights of hand in order to make them look like the results of a detached and sober analysis. The following commentary will show why Professor Tribe's brief against the Court will not withstand disinterested scrutiny.

I. EQUAL PROTECTION AND PRECEDENT

As everyone knows, the Supreme Court's decision in Bush v. Gore came at the end of a complex and multifaceted process of legal and political maneuvering, much of which involved the intricacies of Florida election law. In order to understand the Court's ruling, however, one can get by with only the briefest summary of the background. (9)

After the initial count of the ballots, which had Bush ahead by a small margin, and an automatic recount authorized by state law, which also gave Bush a small lead, Gore asked for additional recounts by local election officials in four heavily Democratic counties. Overruling Florida's Secretary of State, the Florida Supreme Court granted an extension of time for these recounts to be conducted, but two of the counties failed to meet the new, court-ordered deadline. The Secretary of State then declared Bush the winner of Florida's electoral votes, and Gore filed a lawsuit making a number of demands, all of which were rejected by the trial court. Three of those demands, however, were ultimately granted by a 4-3 vote of the Florida Supreme Court, which ordered the trial court to take the following steps:

* Add a net of 215 votes (or perhaps 176, depending on a factual issue that the appellate judges did not resolve) to Gore's total, based on the Palm Beach County recount, whose results were not reported to the Secretary of State before the court-ordered deadline.

* Add a net of 168 votes for Gore to the vote totals, based on an uncompleted recount conducted in Miami-Dade County that had begun with the more heavily Democratic precincts in that jurisdiction.

* Conduct a manual recount of 9,000 Miami-Dade "undervote" ballots, which Gore claimed might shift the statewide totals in his favor. (10)

The Florida Supreme Court also ordered the trial court to take one more step, which Gore had not requested:

* Conduct a statewide recount of some kind, which the Florida Supreme Court strongly suggested should be limited to a recount of the "undervote" ballots in each county. (11)

The U.S. Supreme Court reversed the Florida court, holding that this four-part order (whatever its merits may have been as an interpretation of state law) violated the Equal Protection Clause. Without concluding that any one element was constitutionally fatal, the Court held that the combination of the following facts prevented the order from satisfying "the minimum requirement for non-arbitrary treatment of voters necessary to secure the fundamental right" to vote. (12)

* Varying standards for determining a voter's intent had been employed by the counties in which manual recounts had been held, and at least one county changed its standard repeatedly during the recount.

* Unlike the recounts in the Gore-selected counties, which had included all ballots, the statewide recount was limited to "undervotes," and did not even include the analytically indistinguishable "overvote" ballots.

* Partial results from the uncompleted recount in Miami-Dade had been used to credit one candidate with additional votes, and the Florida court evidently contemplated the future use of partial recounts.

* The statewide recount was being conducted by untrained personnel, unguided by objective standards for identifying legal votes, and observers were not permitted to make contemporaneous objections.

The Court relied for its decision primarily upon Reynolds v. Sims (13) and related decisions, including Gray v. Sanders (14) and Moore v. Ogilvie. (15) The essence of the Court's argument was that these vote-dilution cases prohibit a state from arbitrarily treating ballots differently depending on where they are cast. Acknowledging that it is impossible to treat every ballot or every voter absolutely identically in all respects, the Court concluded that the recount ordered by the Florida court was permeated with avoidable and unjustified nonuniformity, in violation of the principles established by Reynolds. (16)

In an uncharacteristically terse discussion, Professor Tribe dismisses these precedents by distinguishing them on their facts. (17) And he concludes his discussion of equal protection theory and doctrine by endorsing the conclusion set forth on badges that some outraged Gore supporters began wearing after the decision: "EQUAL PROTECTION, MY ASS!" (18) This formulation is somewhat jarring in a piece that purports to offer a "balanced" and "measured" assessment of the Court's work, (19) which he elsewhere indicates has left him with "a sad lump in the throat that will, stubbornly, never go away." (20)

More important, expressions either of contempt or of deeply felt grief are pretty hard to reconcile with Professor Tribe's later acknowledgment that Justices Souter and Breyer, who also concluded that the Equal Protection Clause had been violated, would not have been likely to accept a transparently untenable legal theory. (21) Professor Tribe might also have noted, though he does not, that three Democrats dissented from the Florida Supreme Court's decision, in part for the same reasons adopted by seven members of the U.S. Supreme Court. (22) As we shall see, it is no coincidence that such a wide spectrum of judges all agreed that the Equal Protection Clause had been violated.

The cute walgarity on the Gore supporters' buttons will not withstand scrutiny. Neither will the reference to a Hall of Mirrors in the title of Professor Tribe's essay. The real Hall of Mirrors is the one he himself has constructed.

A. THE LAW THAT APPLIED IN BUSH V. GORE

Perhaps it is best to begin by asking what the Gore supporters who came up with the slogan "EQUAL PROTECTION, MY ASS!" might have meant. For people who are generally familiar with the Court's work, but not immersed in the intricacies of equal protection case law, the Court's decision might well have seemed quite startling, and transparently dishonest. In many cases over the past quarter century or so, the Court has insisted that a plaintiff must show more than unequal effects: discriminatory purpose is ordinarily a necessary element of an equal protection claim. (23) The Court, including the five members of the Bush v. Gore majority, has been insistent about policing this limit on the reach of equal protection analysis, which has been applied for example, in cases involving claims of racial" vote-dilution. (24) Nor have the most conservative Justices shown much willingness to expand the reach of equal protection doctrine into new areas. (25) One possible exception--a telling exception for many observers--has been in the field of affirmative action, where the more conservative Justices have pushed to protect the victims of so-called reverse discrimination.

In Bush v. Gore, the Court demanded no showing of discriminatory purpose or intent. Nor did the Court identify any "suspect class" or "discrete and insular minority" whose interests were threatened by a politically powerful majority. So it may have looked rather obviously as though a sudden and unexplained equal protection innovation had magically emerged from just those Justices usually most averse to such judicial activism. And just in time to rescue a Republican presidential candidate who had promised to appoint more Justices who …