The Unbearable Wrongness of Bush V. Gore

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Again? Another article about Bush v. Gore? (1) Is there anything of substance left to say that has not already been said? I think there has to be--as long as there remain serious observers who react to the Supreme Court's announced equal protection rationale for its stop-the-counting ruling with anything but headscratching incredulity, and as long as trying to figure out how they convince themselves that the Court's rationale made sense reveals something of interest and importance about constitutional law. How one reacts to the Court's equal protection rationale is, of course, affected to some degree by one's disposition toward the results it produced--although Nelson Lund, for his part, seems far too focused on rationalizing his desired result to see that law professor-non-litigants are no less susceptible to "acquired conviction syndrome" (2) than are law professor-litigants.

For Professor Lurid, an attempt to write a "disinterested" response to an "unexceptional" article of "daunting volume" and "genuinely indefensible" conclusions (3) has produced what is undoubtedly the single most partisan and unself-critical defense of the per curiam opinion in Bush v. Gore--a defense that is, to borrow what foreign affairs columnist Tom Friedman once aptly said of Benjamin Netanyahu, "deeply, deeply shallow." While most defenders of the decision have at least struggled with the difficult questions it poses--whether the Equal Protection Clause mandates precisely drawn and completely uniform standards for recounting electoral ballots; whether Article II imposes substantive constraints on a state court's power to interpret its own state election laws; when federal judicial resolution of state ballot-counting disputes intrudes too far into the responsibilities of the coordinate political branches; when the interests of finality and stability instead justify such federal judicial intrusion and might even justify abandoning some voters' rights to have their ballots counted--Professor Lund seems to find all these problems easy. Bush v. Gore's critics have not agreed on just where the Court went wrong, and even most of the decision's defenders, after noting the uniquely hurried and thus arguably extenuating circumstances in which the Court acted, have found something significant to criticize in what the Court did and in what it said. But not Professor Lund. For him, Bush v. Gore was "simply not a close case." (4) Lund's loyalty to each argument, idea, and even word used by the Court is, to my knowledge, unmatched in the academic Community. (5) Methinks the Professor doth protest too little.

In writing this comment, I have resisted the temptation to provide yet another version of the events leading up to the Supreme Court's now famous--or infamous--decision of December 12, 2000. I have already provided a more detailed account than space here will permit, (6) and many other thoughtful histories exist. (7) As a result, this comment jumps straight into the deep end of the proverbial pool, assuming all the while that the reader has at least a modest degree of familiarity with the Election 2000 controversy. In Part I, I defend my belief that the Court's per curiam opinion cannot be grounded in any previously recognized form of the Equal Protection Clause. I first respond to Professor Lund's suggestion that Bush v. Gore was nothing more than a logical extension of "one-person, one-vote" voting rights jurisprudence. I then argue that the Court's failure to grapple with the underlying equal protection issues, and its particularly inexplicable failure to grasp the inconsistency between its own equal protection holding and the remedy on which it settled, evince the almost embarrassing bankruptcy of the rationale the Court's majority adopted.

In Part II, I argue that Bush v. Gore presented a political question that most likely never should have been decided--and, at a minimum, provided an answer that never should have been given--by a federal court. …