First Among Equals (37 page)
Once again, Governor Bush sought expedited review in Washington, the Supreme Court agreed, and argument was set for Monday, December 11. Only eight days had passed since the Court had resolved the initial round of the Florida litigation.
In the rush of events, it seemed as if everyone was scrambling, with confusion suddenly reigning. At oral argument, Joe Klock, the experienced lawyer for Katherine Harris, bungled the justices' names in a rather odd way. He had been at the podium only days before, yet he referred, strangely, to Justice Souter as Justice Brennan, a name from yesteryear. It was as if the Court had undergone a time warp and the Warren or Burger Court was once again sitting. Klock then confused yet another pair of justices' names, prompting Justice Scalia to point out before asking a question: “I'm Scalia.” The courtroom erupted with laughter.
Even if fatigued, Ted Olson, once more at the podium for Governor Bush, again hammered hard at the Florida Supreme Court. Now, with a fractured state supreme court judgment, Olson charged that court with having brought about “wholesale revisions” and a “major restructuring” of Florida law. Professor Tribe, in contrast, had not been asked to make the return visit on behalf of the Gore team; instead, Vice President Gore decided to look to his lead lawyer throughout the Florida courts, the nationally renowned David Boies. Although a master of the facts in the litigation, Boies was unaccustomed to the speedy give-and-take in the Supreme Court. His amiable tendency casually to agree with the questioner came through repeatedly in his presentation. One of his answers, deep in the argument, was especially unhelpful to the Gore cause. Telegraphing the ultimate outcome, Justice Kennedy asked Boies: “Do you think in the contest phase, there must be a uniform standard for counting the ballots?” Boies readily responded: “I do, Your Honor. I think there must be a uniform standard.” He proceeded to argue that a uniform standard was in fact in place—”[t]he standard is whether or not the intent of the voter is reflected by the ballot.”
This was far too general and amorphous to satisfy the Court, and the case was resolved on that very point. Vice President Gore lost the case on grounds of inequality. The next evening, the Court issued its opinions. In the lead opinion, joined by five of the nine justices, the Court grounded its result on the equality principle. In that unsigned opinion, which to Court watchers had the look and feel of an Anthony Kennedy opinion, the five justices concluded that the recount procedures ordered by the Florida Supreme Court were not specific enough to ensure equal treatment of all affected voters. The pivotal conclusion, reflecting a concession by David Boies at the podium that morning, was this: “As seems to have been acknowledged at oral argument, the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.”
The majority pointed to various examples. “A monitor in Miami-Dade County testified at trial that he observed that three members of the county canvassing board applied different standards in defining a legal vote. And testimony at trial also revealed that at least one county changed its evaluative standard during the counting process. … This is not a process with sufficient guarantees of equal treatment.”
Equality, not Article II of the Constitution, or the Hayes-Tilden-era statute, or even whether the Florida courts had run roughshod over the state legislative election scheme (as condemned by
McPberson v. Blacker
)— the various points so strongly pushed by Governor Bush's lawyers—was the Court's chosen principle for deciding the case. Seven justices, cutting across the Court's ideological spectrum, agreed with the substance of the equality-based critique of the vote-counting morass in Florida. Justice Souter and Justice Breyer, although disagreeing with the Court's highly aggressive bottom line, calling a complete halt to the recount process, nonetheless agreed that the vote-counting procedure contemplated by the Florida Supreme Court was simply too open to inconsistencies in actual practice and administration. Ironically, and uncharacteristically, Justices Stevens and Ginsburg were entirely dismissive of the equal-protection claim. As they saw it, the Florida courts were well within their appropriate sphere in interpreting the state election code so as to vindicate the fundamental interest of each voter in having his or her vote count. Equality principles, however powerful they might be to these two justices in other contexts, were simply not worrisome to them in this setting.
Equality, in short, carried the day even in the face of vehement criticisms from within the Court itself. Powerful enough to unite (to a limited extent) seven justices of differing judicial persuasions, it resolved the presidential-election dispute. And the actual decision was remarkably aggressive: an order to the Florida Supreme Court to cease and desist from any further action. There was not a trace of deference to the prerogatives of a state court system. Everyone well knew the inevitable result: Vice President Gore would have to concede, as he did, gracefully, less than forty-eight hours later.
There can be little doubt that, at least at the pivotal center of the Court, where Justices O'Connor and Kennedy sit, equality was seen as the anchor that would ultimately justify, at a moral and political level, what the Court had boldly done. Equality would justify the Court's intrusion into presidential politics and, at the least, minimize the institutional damage inexorably flowing from the Court's involvement with a high-stakes political controversy.
Something else appeared to influence the Court's decision: the freewheeling exercise by the Florida Supreme Court of its judicial power. Article II of the Constitution mandated supremacy of state legislatures in the electoralselection process. But the Florida Court did not seem particularly sensitive to the Article II requirement and the deference it might have owed to state legislative choices in determining procedures for selecting presidential electors. The justices pressed David Boies to acknowledge a duty by the state supreme court to be respectful of the legislature's choices. Justice Kennedy put it this way to Boies:
You are responding as though there were no special burden [on the Florida courts] to show some deference to legislative choices. In this one context, not when courts review laws generally for general elections, but in the context of selection of presidential electors, isn't there a red flag up here, watch out?
Boies cheerfully conceded the point. His response was considerably less than a full-throated defense of the state supreme court's majority: “I think there is [a special burden] in a sense, Your Honor, and I think the Florida Supreme Court was grappling with that.” Suffice it to say that the majority was unmoved by Boies's tepid defense. It is not unreasonable to think that more than a few justices regarded the Florida Supreme Court as an activist one, determined to assert itself over the Constitution and federal law in order to determine the outcome of the presidential election, weeks after it had taken place. Indeed, it was not lost on the Court that in its second decision the Florida justices narrowly divided, and that Florida's chief justice had been sharply critical of what he regarded as the majority's abusive exercise of power.
In
Bush v. Gore,
the Supreme Court thus was rebuking the Florida Supreme Court. The federal Supreme Court was using its judicial power to reject an exercise of judicial power by the state Supreme Court. The federal Supreme Court provided constitutional reasons for its action, but it is apparent that the federal justices were also concerned that the state justices had simply glided past what the U.S. Court had unanimously said during the first round of litigation on December 3. As Justice O'Connor stated, “I did not find really a response by the Florida Supreme Court to this Court's remand in the case a week ago. It just seemed to kind of bypass it and assume that all those changes and deadlines were just fine and they would go ahead and adhere to them, and I found that troublesome.”
Again and again, throughout the course of the oral argument, the justices expressed concern that the state supreme court had glided past what the U.S. Supreme Court had directed at the conclusion of round one. The Florida court had, as one justice put it, “contraven[ed] our vacating of their prior order.” The authority of the nation's highest court had been, at least implicitly, challenged by Florida judges who doubtless felt keenly that they, and only they, should be the final interpreters of their own state's election law. Like the Gore team, the Florida judges underestimated the Supreme Court's determination to protect its authority—first stated in
Marbury v. Madison
—to be the ultimate expositor of the law of the land.
Brushed aside in the process, ironically, was Justice Stephen Breyer's eloquent dissent urging restraint and prudence on the part of the High Court. Courts needed to be cautious in going about their work, he emphasized. Even though, in Justice Breyer's view, equal-protection concerns were triggered by the Florida court's work, the federal courts would be well advised to sit on the sidelines when the core questions at issue were so inextricably wrapped up in politics. Drawing from criticisms of the Warren Court's raw activism, Justice Breyer gently suggested, in his characteristically elegant way, that his colleagues had allowed themselves to be drawn into the “political thicket,” precisely the warning issued to the Warren Court by one of its most outspoken dissenting members, Justice Felix Frankfurter. Remarkably, the
Bush v. Gore
majority touched on this criticism of their judgment only briefly, and at the very end of its opinion:
None are more conscious of the vital limits on judicial authority than are the Members of this Court, and none stand more in admiration of the Constitution's design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.
Notwithstanding this gesture toward restraint, one is left with the impression that the Court, by virtue of its independence, remains aloof from the strong sense that it had usurped power and intruded into the province of both the states (or at least Florida) and the Congress in resolving the ultimate political question in American politics: who the president shall be.
In this decisive sense, the Supreme Court proved beyond doubt its enduring position in the governmental pantheon. It is first among equals.
My indebtedness is broad and deep. To my beloved family, especially Alice, who unfailingly helped and guided me on an unaccustomed (for me) solitary path, I am ever thankful. To those kind enough to read the manuscript at various stages, and provide invaluable insights throughout, my sense of moral obligation to you is very high. Terry Eastland in particular was enlightened by the thoughful criticisms and comments of Stephen Bates and Brett Kavanaugh as to earlier drafts and, more recently, by the insights of Kannon Shanmugam of Kirkland & Ellis in later iterations of the manuscript. Grant Dixton, my most recently arrived colleague at Kirkland & Ellis, has been particularly helpful in the final stages of preparation. Along the way, portions of the book were examined closely by two of my beloved former teachers at the Duke Law School, Robinson Everett and Melvin Shimm. Throughout the process, Kim Martines, my assistant at Kirkland & Ellis, was patient and consummately skilled in laboring over the incessant changes that flooded her desk.
A particular note of thanks for kindness and hospitality of a very high order is due to Mark Grady, dean of the George Mason University School of Law, who made me warmly welcome on campus in Arlington during the months of intense reflection and writing. In addition, my many colleagues and friends at George Mason, including several student research assistants, were steady companions during my exploration of the institution that is largely enshrouded in mystery to the American people. To the George Mason community, I am deeply in your debt.
T
HE
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ONSTITUTION OF THE
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NITED
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TATES
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
A
RTICLE
I
Section 1
All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Section 2.
The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.
No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.
Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty thousand, but each state shall have at least one Representative; and until such enumeration shall be made, the state of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.