Were There Adequate State Grounds in Bush V. Gore?
Wells, Michael L., Constitutional Commentary
Few Supreme Court decisions provoke the immediate and intensely negative verdict that law professors passed on Bush v. Gore. (1) It usually takes some time for scholars to digest the opinions, reflect on the majority's reasoning, and render considered judgments. Not so in this case. Within a few days of the 5-4 ruling that halted the recounting of votes for presidential electors in Florida, the decision drew withering criticism from scholars across the ideological spectrum. Akhil Amar lamented in the Los Angeles Times that he must now tell his students not to put their trust in judges, even though he considers himself "a friend of the U.S. Supreme Court and of many of its current justices"; (2) Jeffrey Rosen called the decision a "disgrace" on the cover of the New Republic; (3) and Herman Schwartz accused the Court of "trampl[ing] on ... [b]asic principles of adjudication." (4)
Some of the criticism is deserved. (5) Professor Amar made a powerful case against the majority's ruling that the recount ordered by the Florida Supreme Court violated the equal protection clause for failure to use uniform standards throughout the state. Amar pointed out that vote counting standards vary from locality to locality all over the nation, that they always have, and that the Court could cite no precedent to support its equal protection theory. Others have questioned whether the ruling rests on any general principle at all, given the care the Court took to limit its reasoning to the extraordinary circumstances of the Florida presidential election. (6) Even Michael McConnell, a well-known conservative scholar, was troubled by the implications of the holding. By reaching the equal protection issue, the Court evidently accepted the notion that recounts were appropriate in connection with the election contest. Yet the Court put a stop to the recount that was underway. McConnell observed that "[t]he court did not have the resolution to declare that no recount was necessary, or the patience to declare that a proper recount should proceed." (7)
It is all too easy to leap from this well-founded critique of the Court's reasoning to the conclusion that the majority--all of whom were appointed by Republican presidents--were bent on installing George W. Bush in the White House by any means they could find, and that the holding rests not at all on law but solely on naked politics. (8) Putting aside the majority's reasoning, a better ground on which to defend Bush is that the Florida Supreme Court (the "Florida Court") violated article II, [section] 1, clause 2 of the Constitution, which provides that "[e]ach state shall appoint, in such manner as the legislature thereof may direct, [presidential] electors." (9) In a concurring opinion, Chief Justice Rehnquist, joined by Justices Scalia and Thomas (the "plurality"), advanced an argument along these lines, and the four dissenters devoted parts of their opinions to refuting it. Though the plurality grasped the basic issue in Bush, it did not make the best case for reversal. The dissenters understandably responded only to the plurality's weak arguments and not the stronger ones that should have been marshaled for reversal.
The Chief Justice was right to be concerned about article II, but committed a critical error in his treatment of the "adequate and independent state ground" doctrine. The plurality was confronted with a state court opinion that did not purport to rely on federal law. If we leave equal protection out of the analysis (as I do throughout the remainder of this article), the threshold question is how one justifies the Court's exercise of jurisdiction, for state courts are sovereign over matters of state law. The general rule is that the Supreme Court may review a case from a state court unless the state court judgment rests on an adequate and independent state ground. The plurality rightly found that, despite the Florida Court's failure to address federal article II issues, there was not an adequate state ground here. …