Academic journal article
By Choper, Jesse H.
Constitutional Commentary , Vol. 18, No. 2
Bush v. Gore, (1) the Supreme Court's final decision and last exercise of its immense power of judicial review in the 20th century, will be one of its most discussed rulings for many years to come (although rarely cited--I predict--for its specific substantive holding). (2) The Justices' assumption of governmental authority reached a new dimension on December 12, 2000, when by a 5-4 margin, the Court affirmed its decision of three days earlier to halt Florida's recount of votes for the presidential election, effectively deciding the contest in favor of Republican candidate George W. Bush. In my view, the Court's intervention in the election was ill advised, not because of the merits of the Court's decision, which has been the dominant subject of both scholarly and journalistic commentary on the ruling, but rather because the proper role of judicial review in our system of government dictates the conclusion that the Court's adjudication was both unnecessary and unwise, creating a widely-based popular perception of partisanship by the Judicial Branch that carries the threat of diminishing the public's trust and confidence in the Justices and endangering the Court's institutional standing and overall effectiveness.
When should the Supreme Court exercise its extraordinary power of judicial review, which is seemingly the most anti-majoritarian of all exercises of national authority, in direct conflict with our fundamental principles of majoritarian democracy. (3) I believe that the Justices should only intervene to secure those constitutional values, mainly found in those constitutional clauses that establish individual rights, that cannot be otherwise adequately protected in the political process. In contrast to disputes concerning federalism (the allocation of power between the national government and the states) (4) and the separation of powers between Congress and the President, (5) where the contestants are forcefully represented in the national political process, the interests of those such as racial, ethnic, and religious minorities, political dissidents and persons accused of crime are particularly susceptible to majoritarian indifference or abuse. (6) By ordinarily limiting judicial review to this category of constitutional provisions, the Court reduces the discord between judicial review and majoritarian democracy and enhances its ability to render enforceable constitutional decisions when its participation is critically needed. (7) While the Court should not avoid matters based on their controversial nature (and many individual rights cases strongly fit this description), neither should it needlessly dissipate its limited institutional support or "capital."
Although, as will be discussed below, the issues addressed by the Justices in Bush v. Gore plainly presented two federal questions, judicial review was not required to secure individual constitutional rights and, more importantly, the central question in the case should have been resolved through the political rather than the judicial process.
At its core, the case confronted the Court with questions of state electoral law--whether the Florida Supreme Court's interpretation of the state's election statutes "impermissibly distorted" the statutory scheme "beyond what a fair reading required" so as to be judicial lawmaking, and thus contrary to Art. I, [section] 2 of the federal Constitution. (8) The one notable exception to this non-individual rights type issue--and the basis on which seven members of the Court agreed to reverse the Florida Supreme Court--was the contention that the discretionary procedures being used in the judicially ordered statewide recount of the undervote in Florida, between counties and within certain counties themselves, in order to determine the "clear intent" of the voter, violated the fundamental right to vote on an equal basis secured by the Equal Protection Clause of the Fourteenth Amendment. …