Academic journal article Texas Review of Law & Politics

The Rule of Law at Century's End

Academic journal article Texas Review of Law & Politics

The Rule of Law at Century's End

Article excerpt


In November and December 2000, a series of governmental officials and governmental bodies made decisions that may have determined the outcome of a presidential election. Many of those individual decisions-whether exercised by Florida county canvassing boards, the Florida Secretary of State, the Florida Attorney General, the Florida Circuit Courts, the Florida Supreme Court, the lower federal courts, or the United States Supreme Court-corresponded with the political affiliation of the decision-maker.1 During five weeks of multi-pronged litigation, the processes of law never seemed more up for grabs. Had the post-election contest continued, it may ultimately have been resolved by avowedly political branches of government, the Florida Legislature and the United States Congress. 2 All these events raise a profound question: Can it still be said, as Chief Justice Marshall did in Marbury v. Madison, that we are "a government of laws, and not of men"?3

That question has been voiced loudly, especially as it relates to the ultimate decision. Immediately after the United States Supreme Court decided Bush v. Gore,4 the editors of The New Republic pronounced: "Are the justices, then, hypocrites? Alas, they are not. They are-sub silentio, as they might say-- Republicans. This ruling was designed to bring about a political outcome, and it is an insult to the intelligence of the American people to suggest otherwise."5 In the same magazine, Legal Affairs Editor Jeffrey Rosen wrote that the Supreme Court had "made it impossible for citizens of the United States to sustain any kind of faith in the rule of law as something larger than the self-interested political preferences of William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O'Connor."6

These fulminations cannot be dismissed as the overblown rhetoric of aggrieved political propagandists. No less an authority figure than Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg and Stephen Breyer, wrote in dissent that "the identity of the loser [in the presidential election] is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."7

As of Spring 2001, that charge has gone unanswered. Rosen observed in The New York Times Magazine that "few conservative commentators even attempted to defend the legal reasoning of the decision; instead, they focused on what they considered the rough justice of the outcome."8 The Washington Post reported on February 21, 2001 that a forthcoming law review article by Appellate Judge Richard Posner was the first intellectual defense of the outcome in Bush v. Gore, but even Posner's article reportedly derides the Court's per curiam majority opinion and its reliance on the Equal Protection Clause and argues that the desire to head off a major crisis justified the concurring Justices' interpretation of the Constitution 9-even if that interpretation was not itself "conclusive."10

Notwithstanding the dicta, protests, and punditry, the rule of law was vindicated in Bush v. Gore. In this article, I defend the proposition that the Florida Supreme Court's order that ballots be hand-counted statewide offended the rule of law, justifying reversal by the United States Supreme Court based on the Equal Protection Clause and the Due Process Clause. I also argue that the Court's majority opinion is consistent with conservative jurisprudence, properly understood, and that the intellectual debate over the Court's decision reflects a wider Kulturkampf in contemporary legal thought that extends to the meaning and desirability of living under the rule of law."11

Ironically enough, intimations of the correctness of Bush v. Gore can be read in unheralded opinions subsequently issued by the Florida Supreme Court. On December 14, 2000, after Vice President Gore had conceded the election, all seven Florida justices concurred in a two-page order dismissing the case because "[o]n the date of the subject election, the Florida Election Code did not provide the elements necessary for a resolution of the disputed issues, based on the constitutional parameters expressed by the United States Supreme Court. …

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