Bush V. Gore: Looking at Baker V. Carr in a Conservative Mirror

Article excerpt

A Southern state engages in electoral shenanigans, thereby precipitating a national crisis. Most United States Supreme Court Justices conclude that the ordinary political process will not remedy the problem. Unfortunately for them, the justiciability doctrines and federalism generally prohibit federal judicial intervention in state electoral matters, absent a clear and egregious violation of the Constitution (such as racial discrimination). Although the state's action strikes these Justices as unfair, it does not run afoul of any federal constitutional provision. Undaunted, they make up new equal protection law and hold that the state has failed to comply with it. Several Justices bitterly dissent that the majority's blatant political interference will erode respect for the Court as the impartial guardian of the rule of law.

Why bother with yet another recap of Bush v. Gore? (1) Because the exact same summary applies to Baker v. Carr. (2) There the Warren Court perceived a crisis that defied a political solution: Tennessee and many other states had always apportioned legislative districts to reflect various interests (e.g., geographic, political, economic, and demographic), often with the aim of maintaining the electoral strength of conservative rural areas vis-a-vis the rapidly growing (and predominantly liberal) cities and suburbs. (3) The Court found justiciable a claim that the Equal Protection Clause required apportionment to be based solely on population, despite the dissenters' arguments that (1) nothing in that Clause, or any other constitutional provision, authorized this result, and (2) the majority had abandoned the principles of judicial restraint embedded in the ideas of stare decisis, justiciability, and federalism.

For the past four decades, the Court has steadfastly adhered to Baker and the "one person, one vote" standard it spawned. Moreover, although some legal scholars initially criticized Baker, within a few years they had generally accepted its validity, and today the opinion meets with near-universal acclaim. (4) In short, Baker is an unassailable twentieth-century landmark.

Therefore, it should hardly be surprising that the Court decided Bush precisely the way it decided Baker. Once again, an electoral emergency arose--the 2000 presidential candidates' deadlock in Florida--that struck the majority as insoluble through normal political channels. Once again, over acrimonious dissents, the Court created an unprecedented equal protection "right" (to state government consistency in counting votes) and ignored concerns for both federalism (which counseled deference to Florida officials as they tried to work out the ballot disputes) and justiciability (which militated against judicial review, at least until the state and Congress had completed their constitutional roles in selecting the presidential electors).

What should raise eyebrows, however, is that Bush v. Gore has caused law professors who have canonized Baker to wail and gnash their collective teeth. (5) If Baker was right, how can Bush be wrong? Because the former reached a liberal result, and the latter a conservative one? Such a nakedly political argument simply will not do, especially if made by mainstream scholars, who have steadfastly justified Warren Court decisions like Baker as grounded in constitutional "law," not "politics." (6) For such intellectuals, consistency demands accepting the correctness of both Baker and Bush. Conversely, those few conservative theoreticians who have condemned Baker as exemplifying Warren Court activism cannot, in fairness, applaud Bush. Rather, they must either swallow Baker or spit out Bush.

For those of us who cling to the quaint notion that the Justices should apply rules of law rather than impose their political preferences, however, the only coherent conclusion is that both decisions were wrong. I will develop this thesis by examining Baker and Bush in turn, then explaining why these two opinions rested upon similarly faulty reasoning and cannot be materially distinguished. …