"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)

By Lund, Nelson | Constitutional Commentary, Winter 2002 | Go to article overview
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"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)


Lund, Nelson, Constitutional Commentary


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.

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