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BUSH V. GORE HAS NOT WOUNDED THE U.S. SUPREME COURT
Professor William G. Ross
University of Notre Dame Law School
Editor, JURIST Forum

The U.S. Supreme Court痴 decision in Bush v. Gore, which effectively awarded the presidency to George W. Bush, was widely predicted to diminish public respect for the U.S. Supreme Court. The Court痴 interjection of itself into a political controversy and the perfect correlation between the Justices votes and their presumed partisan allegiances raised widespread allegations that the Court had rendered a blatantly political decision. The willingness of Justices who ordinarily defended states rights to impose stringent constitutional limitations upon Florida痴 election procedures made the decision particularly odious to many of the Court痴 critics.

Dire predictions began among the Justices themselves. In his dissenting opinion, Justice Stephen Breyer warned that the decision threatened a 都elf-inflicted wound a wound that may harm not just the Court, but the Nation. In another dissent, Justice John Paul Stevens expressed a similar foreboding. Stevens wrote that 甜a]lthough we may never know with complete certainty the identity of the winner of this year痴 presidential election, the identity of the loser is perfectly clear. It is the Nation痴 confidence in the judge as an impartial guardian of the rule of law. Stevens also feared that the Court痴 opinion 田an only lend credence to the most cynical appraisal of the work of judges throughout the land.

Breyer borrowed the 努ound metaphor from Charles Evans Hughes痴 much-quoted observation in 1927 that the Court had sometimes suffered self-inflicted wounds through decisions in which it imprudently meddled in political controversies. Hughes referred to the Court痴 infamous pro-slavery decision in Dred Scott v. Sandford (1857), its opposition to paper currency in the legal tender cases in 1869 and its nullification of the first peacetime federal income tax in 1895. Hughes痴 metaphor is remembered primarily in connection with his remarks about Dred Scott, and many of the Court痴 critics have prophesied that Bush v. Gore will have the same lasting infamy.

Nearly a year and a half after Bush v. Gore, however, the anticipated firestorm looks more like a few whiffs of smoke furiously fanned by a handful of the Court痴 critics, mostly legal academics who were antagonistic toward the Rehnquist Court long before Bush v. Gore.

Criticism of the Court is almost wholly absent from the popular media and there is no organized movement to curtail the Court痴 powers. Moreover, opinion surveys last summer indicated that Bush v. Gore had not appreciably affected overall public opinion of the Court. The Gallup Poll indicates that there was a small spike in negative attitudes toward the Court shortly after Bush v. Gore, but that opinion in June 2001 was exactly the same as it had been two months before the election 62 percent of respondents expressed approval of the Court, while 25 percent expressed disapproval. Similarly, surveys conducted by University of Wisconsin Professor Herbert W. Kritzer and the University of Wisconsin痴 Survey Center indicated that public opinion toward the Court remained much the same before and after Bush v. Gore.

Although the Gallup and Kritzer surveys indicated that Bush v. Gore did alter partisan perceptions of the Court -- with approval of the Court rising among Republicans and falling among Republicans -- the differences were not dramatic.

Indeed, the decision might actually have enhanced public opinion of the Court to the extent that the public perceived that the Court rescued the nation from a constitutional crisis. Polls indicated that Americans trusted the Court to resolve the election crisis fairly far more than they trusted Congress or state officials.

Moreover, the Kritzer survey indicates that the publicity surrounding the decision may have indirectly helped the Court insofar as it appears to have improved public knowledge about the Court. For example, the percentage of persons who could identify the number of Justices and name the Chief Justice increased, as did the percentage who understood that the Court can control its docket and does not use juries.

There are many reasons why Bush v. Gore has not generated widespread antagonism against the Court.

The complexity of the decision goes far toward explaining public apathy since the issues are too abstruse to command the comprehension, or at least capture the attention, of more than a very small number of Americans. Even among the sliver of well-informed persons who actually have read and understood the decision, the Court痴 divisions are more likely to reinforce longstanding attitudes and perceptions. Bush v. Gore has naturally helped to confirm the belief of liberals that the Court痴 conservatives are result-oriented. Some liberals, however, have welcomed the Court痴 introduction of new constitutional standards into state electoral processes.

The reasons for the absence of any apparent wave of anti-Court sentiment also reflect political reality. The nearly 50 percent of the electorate who voted for Bush are not likely to complain about the decision. Although a handful of conservatives have expressed reservations over the Court痴 scrutiny of electoral procedures about which federal courts traditionally have deferred to the states, few have voiced serious objections about a decision that produced a Republican president. And even many of Gore痴 voters may not be inclined to feel wrathful toward the Court since few voters appear to have had supported Gore with much passion. Moreover, the surge in Bush痴 popularity since September 11, which has provided Bush with a level of support almost without parallel in the annals of the presidency, has naturally diverted hostility away from the judicial decision that precipitated Gore痴 concession.

Even if Bush were unpopular, however, it is unlikely that Bush v. Gore would have created any significant animosity against the Court. Public support for the Court has remained remarkably resilient throughout American history, even when the Court痴 decisions have been broadly unpopular. Significant agitation against the Court generally has arisen only when the Court has rendered a long series of unpopular decisions which have directly affected Americans in their daily lives and when the Court has seemed likely to continue to had down such decisions.

Contrary to Hughes痴 assertion that the Court wounded itself in its decisions in Dred Scott and the legal tender and income tax cases, none of those decisions generated any sustained effort to diminish judicial power. Hostility was mostly directed against the individual decisions and certain Justices rather than against the Court as an institution.

During the early twentieth century, however, the Court痴 nullification of social and economic regulatory legislation and its restrictions upon the legal powers of labor unions produced significant animosity toward the Court that found expression in a broad array of proposals to restrict judicial power, including measures to permit Congress to overrule the Court痴 decisions, require the concurrence of more than a majority of Justices to nullify legislation, and restrict the tenure of federal judges. This anti-Court agitation reached its climax in Franklin D. Roosevelt痴 unsuccessful effort to 菟ack the Court with six additional Justices in 1937.

Although liberal agitation against the Court evaporated after 1937 along with the Court痴 hostility toward regulatory legislation, acrimony against the Court erupted among conservatives during the 1950s and 1960s as the result of the Court痴 decisions on desegregation, domestic subversion, reapportionment, school prayer, and criminal rights. The Court痴 critics once again advocated an array of measures to curtail the Court痴 powers.

These and other movements to curb the Court have faced massive obstacles which have ensured their defeat. They have foundered upon the institutional obstacles inherent in the constitutional amendment process, the willingness of the Court to adopt positions that mute criticism, the recognition by the Court痴 critics that judicial power could be harnessed to serve their own political agendas, and the widespread respect for the Court that is deeply entrenched even among its most ferocious critics.

In contrast to decisions that have generated organized hostility toward the Court during past periods of American history, Bush v. Gore is an anomalous decision. Since it is not part of any ongoing controversy involving discrete political issues, it will not make itself repeatedly felt in the daily life of the nation in the manner of the Court痴 highly controversial decisions regarding criminal rights, school prayer, or abortion. Bush v. Gore merely settled the 2000 election; it did virtually nothing more. Although some conservative commentators, including Robert Bork, have expressed concern that the decision痴 application of the equal protection clause will unduly intensify federal oversight of state election laws, even this effect would not have the vast impact of decisions during the Progressive and Warren Court eras that were so unpopular with large numbers of Americans that they generated significant anti-Court movements.

While the Court痴 critics contend that Bush v. Gore is part of a larger pattern of judicial activism by the Rehnquist Court that tends to bring the Court into disrepute, any such tendency is not likely to significantly diminish public respect for the Court because the Court痴 allegedly activistic decisions on such subjects as civil liberties and states rights have not generated widespread popular hostility. Americans generally do not care in the abstract whether the Court is faithful to precedent if they agree with the outcome of its decisions.

Moreover, as University of Virginia Law Professor Michael J. Klarman remarked in a recent law review article, the 鼎ourt might emerge from Bush v. Gore reasonably unscathed, because the remainder of the Court痴 constitutional jurisprudence has been such a political grab bag of results, with liberals winning in issues involving abortion, school prayer, and gender discrimination and conservatives prevailing in cases on affirmative action, parochial school aid, federalism, and criminal procedure.

Although some commentators predicted that Bush v. Gore would precipitate a serious effort to pare the Court痴 powers, most have merely forecast that the perception of partisanship by the Court will exacerbate the intensity of the confirmation process for the next Supreme Court nominee. A rambunctious confirmation process would be likely even without Bush v. Gore, however, insofar as the Court is closely divided on many key issues, and the Senate and Presidency are controlled by different parties. Moreover, there was a growing recognition of the Court痴 political role even before Bush v. Gore, and a concomitant increase in the Senate痴 scrutiny of nominees. Although 釘ush v. Gore will surely be one of the battle cries of liberals during coming confirmation hearings, this decision is not likely to provide significant new ammunition against the Court.

Similarly, Bush v. Gore does not appear to have produced the acrimony within the Court that many commentators predicted in its wake. Some scholars have detected a diminution in polarization in various decisions during the past year, while Justice Ruth Bader Ginsburg and other Justices have sent public signals that the fissures of Bush v. Gore have not produced any enduring enmity among the Justices. As Drake Law Professor Thomas E. Baker observed at the end of the Court痴 term last summer, the Justices 途olled up their sleeves and worked hard to put [Bush v. Gore] behind them.

More surprising than the absence of any anti-Court sentiment arising out of Bush v. Gore is the almost complete lack of popular revulsion against the Electoral College in the wake of Bush痴 election with fewer popular votes than Gore received. For decades, many political commentators had predicted that the election of a president with less than a plurality of the popular vote would result in the swift abolition of the Electoral College. Although several nineteenth century presidents were elected without a plurality of the popular vote, one would expect Americans of the twenty-first century to have far less tolerance for a system that would permit the loser of the popular vote to win the election. This had not occurred since 1888. Since then, popular democracy has made so many advances the popular election of senators, the abolition of racial discrimination in voting, the enfranchisement of women, and the 登ne-person, one-vote principle of apportionment that one would expect voters to rebel against a system that did not permit the election of the choice of the largest number of voters. The near-malfunctions of the Electoral College in the elections of 1968 (which almost ended up in the House of Representatives) and 1976 (which nearly produced a disparity between the electoral vote and the popular vote) resulted in serious renewal of long-term efforts to abolish the Electoral College. In contrast, the Electoral College痴 frustration of the will of the plurality in the 2000 election has produced hardly a whimper.

Widespread public acceptance of the Electoral College may reflect the same attitude that has sustained public acceptance of Bush v. Gore: people perceive that both produced a legitimate resolution of the election because they both followed prescribed procedures of constitutional law.

In warning that the Court might be wounding itself, Justice Breyer observed that 鍍he public痴 confidence in the Court itself...is a public treasure...built slowly over many years. Although it is too early to tell whether Bush v. Gore will tarnish the reputations of individual Justices, the overwhelming public acceptance of the decision during the past year and a half seems to confirm that the Court has not lost any significant portion of its treasured public confidence.


William G. Ross, a professor at the Cumberland School of Law of Samford University, is currently a visiting professor at the University of Notre Dame Law School.

May 2, 2002

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EDITOR

JURIST Forum Editor William G. Ross is a professor at the Cumberland School of Law of Samford University, and visiting professor at University of Notre Dame Law School for 2001-02. Professor Ross practiced law in New York City for nine years before joining the Cumberland faculty in 1988. He is the author of two books about American constitutional history and a book about the ethics of time-based billing by attorneys. His numerous law review articles concern ethics, legal history, and the federal appointments process. Professor Ross graduated from Stanford in 1976 and the Harvard Law School in 1979.