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BUSH V. GORE COULD HAPPEN AGAIN
Professor Thomas E. Baker
Florida International University College of Law
JURIST Guest Columnist

Going into the presidential election with an uneasy feeling of d駛 vu reveals that the absolute worst thing about the Supreme Court痴 decision in Bush v. Gore is that it is stare decisis or precedent. That means it could happen again.

Suppose that history repeats itself in a closely-divided popular vote in the November 2004 election預 hypothetical that has to be taken seriously, given recent polling numbers and the lengthy list of contested states. Suppose that neither John Kerry nor President Bush has the necessary 270 vote majority in the electoral college and so the outcome depends on the electoral votes of a single state and suppose that once again that particular state友lorida or some other state擁s simply 鍍oo close to call. Under the law of every state, there is some procedure for a recount. Lawsuits and legal challenges would follow and there would be appeals to the state supreme court. The precedent of Bush v. Gore is that no matter how the state supreme court decides the case, Kerry v. Bush is going to be decided by the Supreme Court of the United States.

Before Bush v. Gore, jurists and academics would have confidently explained that the legal issues in a presidential election undergoing a contested recount were a matter of state law and the federal courts could not hear and decide the appeal in the first place, because the issues on the merits were nonjusticiable, i.e., political questions that were beyond the ken of Article III courts. Indeed, in December 2000 the experts and the pundits were all over the newspapers and cable news shows predicting that the Supreme Court of the United States would not take the Florida case. That their predictions proved to be mistaken, that the Supreme Court took the case on appeal from the state high court葉wo times, no less揺ighlights how much Bush v. Gore changed election law and the Constitution.

Not a single one of the nine Justices seriously argued that the case should not have been heard because under the Constitution those issues were committed to the political process and therefore for the elected branches to resolve. Sure, the per curiam opinion said the decision was 斗imited to the present circumstances, but the not-so-far-fetched hypothetical is the identical situation. Sure it takes four votes to grant review in the Supreme Court, but Bush v. Gore itself is evidence that there will be four Justices willing to take the next case.

The fact that what the Justices did in Bush v. Gore amounted to an amendment to the Constitution is demonstrated by a 澱efore and 殿fter. Before: the federal courts would have left the issues to the political branches. The contested election would have played out in the state courts and state legislature and in Congress. That is what happened the only time this has ever happened before, in the Hayes-Tilden election of 1876: Congress created a commission, consisting of members of both houses plus five justices of the Supreme Court, that divided along party lines and awarded the disputed electoral votes to Hayes. The text of the Constitution and the consensus understanding of constitutional law was that it was for Congress ultimately to resolve the election dispute.

After: never mind the state courts and the state legislature or the Congress for that matter, and paraphrasing the movie line, 展e don稚 need no stinking commission. Forget that the Constitution says that Presidents are supposed to choose Justices, not the other way around. Justice Jackson was wrong: the Supreme Court is final and infallible.

Thus, the worst thing about Bush v. Gore is not that Bush won or that Gore lost, but rather that the Supreme Court took it upon itself to decide the case, in the first place, and established itself as the presidential election commission. Indeed, after Bush v. Gore, the set of issues that are political questions葉he kinds of issues that used to be off-limits for judges and courts to decide擁s a null set. Chief Justice Charles Evans Hughes once observed: 展e are under a Constitution, but the Constitution is what the judges say it is . Judicial review has metastasized into judicial supremacy. 徹ne person, one vote sounds good on paper, but in practice all you need is five votes out of the nine.


Thomas E. Baker is a Professor of Law at the Florida International University College of Law.

June 14, 2004

GUEST COLUMNIST

JURIST Guest Columnist Thomas E. Baker is a professor at the Florida International University College of Law. He has over 22 years of law teaching experience and is a nationally prominent Constitutional Law scholar who has received numerous awards for his classroom teaching. Before joining the FIU College of Law faculty, he held the James Madison Chair in constitutional law that Congress endowed at Drake University Law School to commemorate the bicentennial of the U.S. Constitution.

From 1985 to 1987, he worked at the Supreme Court, first as a Judicial Fellow and then as Acting Administrative Assistant to Chief Justice William H. Rehnquist. From 1979-98, Professor Baker was a member of the faculty at Texas Tech University School of Law, where he held the Alvin R. Allison Distinguished Professorship and received every teaching award the law school and the University awarded. He was the Distinguished Fulbright Professor of American Constitutional Law at the University of Athens in 1992. He was a member of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, by appointment of the Chief Justice, from 1990-1995. In 1995, he received a formal Commendation for Distinguished Service from the Judicial Conference of the United States. He is also the recipient of the Bicentennial of the Constitution Award in Legal Education. Professor Baker is frequently quoted as an expert in constitutional law and the courts, and has appeared on NPR; LAW.COM; CNN's Burden of Proof; C-SPAN; and numerous legal education programs for lawyers and judges. He is the author of six books, including the "Nutshell" on Constitutional Law (forthcoming 2002), and more than 90 articles, including articles published in the Harvard, Michigan, UCLA, Iowa, Washington & Lee, and William & Mary law reviews. After graduation from law school, he clerked on the United States Court of Appeals for the Eleventh Circuit. His law school recognitions include High Honors and Order of the Coif.