Bush v. Gore. Implications for future federal court practice.

It has been just about two years since Bush v. Gore, 531 U.S. 98 (2000), the U.S. Supreme Court's extraordinary decision that ended the debate over how to count the ballots in Florida and unofficially declared a winner in the 2000 presidential election. (1) Although numerous legal commentators have weighed in on the opinion--including, most notably, Judge Richard A. Posner of the Seventh Circuit (2) and Professor Alan M. Dershowitz of the Harvard Law School (3)--they have tended to focus on whether the Court properly resolved the constitutional issues or how the case will be viewed by history. (4)

In this article, I wish to consider the Court's decision from a different vantage point. Specifically, I am curious about how it might change future federal court practice.

Actual Impacts

To a certain degree, of course, the decision's impact on the federal courts already is clear. First, and most obvious, it made George W. Bush rather than Al Gore the President of the United States. In doing so, it ensured that for the next four years, more conservative nominees will be appointed to the federal bench (including possibly the Supreme Court itself), the government will be more solicitous to the interests of business in fields in which federal law predominates, and federal agencies will be content to follow existing law rather than looking for ways to expand it. (5)

Second, the intense media coverage surrounding the decision has raised the profile of the Supreme Court and, to a lesser degree, the entire federal court system. (6) Americans now are keenly aware of the Supreme Court in a way they have not been since the heyday of the Warren Court.

The Court's new-found celebrity status helps explain why this past spring saw the debut of not one, but two, prime-time television series about the Court (ABC's "The Court" and CBS's "First Monday"). Although both were quickly canceled, the fact that the networks were willing to invest the time and effort needed to produce hour-long dramas--and fill them with such well-known (and high-priced) stars as Sally Field and James Garner--speaks volumes about what Hollywood thinks of the Court's current place in society. (17)

Third, the decision reaffirmed the importance the Court places on institutional unity, as evidenced by the fact that its judgment came in the form of an unsigned per curiam opinion. (8) At the same time, the accompanying individual rulings (a concurrence by Chief Justice Rehnquist and dissents by Justices Breyer, Ginsburg, Souter, and Stevens) make it clear the Court remains what it has been for the past 30 years: a deeply divided and politically riven institution. (9)

Fourth, although the Court declined to allow the press to broadcast the oral arguments live, it did make available, on an expedited basis, an audiotape of the proceedings. (10) By doing so, we are one step closer to allowing the public to see for itself what occurs inside federal courtrooms. (11)

Fifth, the decision has profoundly affected law schools. Because of the unprecedented role the Court played in the election, student interest in such subjects as election law, federalism, and separation of powers has skyrocketed. (12) Indeed, not since the days of Watergate have law schools had to so quickly bulk up their constitutional law curriculums.

Lastly, it seems safe to say that every future discussion of persuasive appellate advocacy will include at least one reference to the unfortunate attorney who addressed Justice Stevens as Justice Brennan and Justice Souter as Justice Breyer, thereby leading a bemused Justice Scalia to explain, "Mr. Klock, I'm Scalia." (13)

Possible Impacts

Although the Court took pains to limit the precedential value of its opinion, (14) decisions of the Supreme Court, once released, tend to take on lives of their own and often lead to unintended consequences. (15) In this instance, it appears there are nine areas in which Bush v. Gore could work a surprising change in future federal court practice.

* Ripeness

The Supreme Court requires that cases be ripe for adjudication. Yet at the time that Bush v. Gore was orally argued on Monday, December 11, nothing definitive had taken place. Although Secretary of State Katherine Harris had certified Bush as the winner of Florida's 25 electoral votes, recounts were proceeding across the state under guidelines devised by Circuit Court Judge Terry P. Lewis. (16) Had those recounts reconfirmed Bush's victory, as we now know they would, (17) there would have been no dispute. As such, it appears that by jumping in prematurely, the Court substantially relaxed the rules regarding when a claim is ripe. (18)

* Standing

One issue that was never raised before the Supreme Court was whether George Bush had standing. Instead, the Court simply assumed he did and proceeded to consider the merits. (19) Yet as we know, standing is an essential prerequisite in federal court litigation.

To have standing, a party must be able to demonstrate that it has been injured. But when Bush appealed to the Supreme Court on Friday, December 8, he had no real injury. Although he had just lost for the second time at the Florida Supreme Court, (20) the defeat merely meant that he would have to wait a little longer to declare victory in Florida. This is a rather questionable basis on which to find federal standing and appears to open the door wide to all sorts of claims based on psychic, intangible, or potential injuries.

The Court's decision also changes our understanding of standing in another way. Normally, one must suffer a direct injury to have standing. In presidential elections, however, voters cast ballots for delegates to the Electoral College (the people who actually pick the president). Thus, if there was any direct injury, it belonged to the voters.

Of course, some may argue that Bush had derivative standing and was proceeding on behalf of his supporters. Yet the Supreme Court repeatedly has held that a litigant cannot assert the rights of third parties.

One federal court already has concluded that the decision has changed standing. In Hawkins v. Wayne Township Board of Marion County, Indiana, 183 F. Supp. 2d 1099 (S.D. Ind. 2002), the plaintiff, who had lost his bid for a seat on the township board, brought suit on behalf of those who voted for him. When the board sought to have the case dismissed for lack of standing, the court rejected its argument by writing:

If candidate Hawkins did not have standing to raise [the] equal protection rights of voters, it would be difficult to see how then-candidate George W. Bush of Texas had standing to raise the equal protection rights of Florida voters that a majority of the Supreme Court deemed decisive in Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000). (21)

* Political Question Doctrine

Despite the fact that it is one of the three branches of government, the Supreme Court has resisted becoming involved in "political questions." Was Bush v. Gore not a political question? Put another way, is there any undertaking in this country that is more political than choosing a president?

The Court could have declined to involve itself in the dispute by invoking the political question doctrine. That it should have done so seems clear given that the Constitution leaves it to the states, the Electoral College, and, ultimately, Congress to choose the president.

By deciding to ignore both the Constitution and its own jurisprudence, the Court has undercut the notion that federal courts do not immerse themselves in the rough-and-tumble world of politics. This is hardly a salutary development. (22)

* Subject Matter Jurisdiction

In appealing from the Florida Supreme Court to the U.S. Supreme Court, Bush was required (under 28 U.S.C. [section] 1257) to demonstrate that the proceedings below affected a federal right. It remains an open question whether this burden was met.

As explained above, the legal dispute between Bush and Gore did not concern the presidency, an admittedly federal office. Instead, it turned on how the state of Florida was going about selecting the delegates who would meet in Tallahassee on Monday, December 18, to cast the state's Electoral College votes. Viewed in this light, Bush v. Gore affected no one's federal rights.

To get around this stumbling block, the Court focused its attention on the so-called "safe harbor" provision of the federal election statute (3 U.S.C. [section] 5). By adopting this tack, however, the Court broke away from its long practice of deferring to state courts on matters of state law. It is hard to see the constitutional basis for doing so, much leas the practical wisdom. (23)

* Abstention 

Even when a basis for federal court jurisdiction exists, the Supreme Court has recognized that it is sometimes more appropriate to have the dispute remain in state court. One may legitimately ask why the Court did not find abstention proper in Bush v. Gore. (24)

When the Court intervened in the dispute by issuing a stay on Saturday, December 9, three different state processes were taking place or on the immediate horizon. First, of course, hand recounts were being conducted under the supervision of Judge Lewis. Given that he had ordered them to be completed by Sunday, December 10, it is hard to understand why the Court was unwilling to wait one additional day to see if the new count would have ended the dispute.

Second, prior to the stay being granted, the Florida Legislature was preparing, despite some uncertainty over its right to do so, to select its own slate of pro-Bush delegates to the Electoral College. As between the U.S. Supreme Court--an appointive federal tribunal with life tenure--and the Florida Legislature--a state body that must justify its actions at regular intervals to the voters--it clearly would have been preferable for the latter to decide that George Bush had won the state.

Third, the actual outcome in Florida was still more than a week away, inasmuch as the Electoral College was not scheduled to meet until December 18.

In light of the foregoing, it is hard to see why the Court thought it wise to intervene; by doing so, the Justices have left the concept of abstention in tatters.

* Equal Protection

No issue was more central to the Court's reasoning than equal protection, which it found violated by the different methods being used to recount Florida's ballots. (25) Yet until Bush v. Gore, the Court always had viewed equal protection in rather narrow terms.

As everyone agreed, ballots were being counted in exactly the same manner in each county. What was different were the standards across counties. Under the Court's previous jurisprudence, intra-county equality should have been enough. By suddenly requiring inter-county equality, the Court may have increased what is required of government when it comes to treating its citizens equally. The first two reported decisions to consider this possibility, however, have held that the prior case law remains controlling. (26)

Simultaneously, litigants in disputes far removed from the mechanics of voting also have sought to take advantage of the Court's shifting view of what the Equal Protection Clause requires. Thus, for example, Bush v. Gore has surfaced in everything from criminal prosecutions (27) and personal injury lawsuits (28) to disability benefit appeals (29) and zoning decisions affecting adult entertainment establishments. (30)

* Due Process

Although the Court relied primarily on the Equal Protection Clause in its opinion, it also made reference to the Due Process Clause. Interestingly, the Court did not have a scintilla of evidence before it that any citizen's due process rights had been violated. This is not terribly surprising given that the only parties before the Court were the candidates and the recount was not yet complete.

By ruling as it did, the Court has raised the possibility that plaintiffs will be welcomed into federal court whenever an untested process--even one designed in good faith to deal with an emergency--might violate some party's due process rights. This is rather troubling, for it effectively ties the hands of the government. Clearly, the more sensible course, and the one that had been followed up until Bush v. Gore, is to focus on the redress of actual injuries rather than speculate about possible constitutional violations.

* Separation of Powers

As a coordinate branch of government, the Supreme Court attempts to avoid encroaching on the constitutional prerogatives and duties of Congress. Yet in ruling as it did, the Court clearly usurped Congress's power to decide whether to accept Florida's Electoral College votes.

According to the Court, it intervened to ensure that Florida's Electoral College votes qualified for safe harbor treatment under 3 U.S.C. [section] 5. (31) But as the dissenters pointed out, there is nothing magical about the safe harbor; missing it simply means that Congress can, if it chooses, review the state's Electoral College votes. (32) When one recalls the political makeup of the last Congress, it seems unlikely that it would have done so.

Even if Congress had reviewed Florida's votes and rejected them, this provides no justification for the Court to have taken action. Article II of the Constitution, as modified by the Twelfth Amendment and implemented by Title 3 of the United States Code, makes it clear that Congress oversees the process exclusively.

That the Court nevertheless chose to act provides a basis for federal courts to be less sensitive to arguments predicated on separation of powers. Again, whether this is good or bad is in the eye of the beholder.

* Federalism

During the past two decades, the Court has become a champion of states' rights and, as a result, made it increasingly difficult to challenge state officials and policies in federal court. Bush v. Gore certainly is not cast from this mold. Indeed, based on the Court's rather loose reasoning, one can imagine federal courts being asked to review all sorts of state decisions that previously would have been off-limits.

What is particularly troubling about the Court's work is that it contains no discernible limits. Its willingness to find federal constitutional issues in what essentially was a state election means that all state processes are now, in one way or another, a federal concern. This is an amazing holding, and one likely to cause great mischief. At the same time, it is clear that the federal courts will quickly grind to a halt if they are forced to review even a small percentage of the innumerable acts performed every day by state and local governments. (33)

Conclusion

The immediate legacy of Bush v. Gore is clear: George Bush sits in the White House and his appointees are beginning to exert their influence on the federal government. The future legacy of the Court's decision remains to be seen. It seems likely, however, that it will lead to a reexamination of the proper role of the federal courts, cause certain established doctrines of federal court practice to be rethought, and perhaps open the door to claims previously understood to be within the exclusive province of the state courts.

(1) Of course, not everyone is convinced of the decision's remarkableness. See, e.g., George L. Priest, Reanalyzing Bush v. Gore: Democratic Accountability and Judicial Overreaching, 72 U. COLO. L. REV. 953 (2001) (suggesting that it did little more than confirm what Florida's state election officials had known all along).

(2) See RICHARD A. POSNER, BREAKING THE DEADLOCK: THE 2000 ELECTION, THE CONSTITUTION, AND THE COURTS (2001).

(3) See ALAN M. DERSHOWITZ, SUPREME INJUSTICE: How THE HIGH COURT HIJACKED ELECTION 2000 (2001).

(4) See, e.g., Symposium, Votes and Voices: Reevaluations in the Aftermath of the 2000 Presidential Election, 23 CARDOZO L. REV. 1145 (2002); Michael J. Klarman, Bush v. Gore Through the Lens of Constitutional History, 89 CAL. L. REV. 1721 (2001); Laurence H. Tribe, eroG v. hsuB and Its Disguises: Freeing Bush v. Gore from Its Hall of Mirrors, 115 HARV. L. REV. 170 (2001); Vikram Amar & Alan Brownstein, Bush v. Gore and Article II, FED. LAW., Mar./Apr. 2001, at 27.

(5) That these developments are well underway is evident from the Administration: 1) naming John Ashcroft and Theodore B. Olson, two arch conservatives, to serve as Attorney General and Solicitor General; 2) halting the Justice Department's bid to break up Microsoft on anti-trust grounds; 3) supporting the effort to cut back the reach of the Americans with Disabilities Act (a goal reached in Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002)); 4) ending the longstanding practice of having the American Bar Association evaluate judicial nominees (because of the group's allegedly liberal bias); 5) seeking to elevate jurists with conservative voting records to the federal appellate bench (such as U.S. District Judge Charles Pickering, Sr., and Texas Supreme Court Justice Priscilla R. Owen, whose nominations to the Fifth Circuit were both rejected by the Senate Judiciary Committee in 2002); and 6) attempting to influence the direction of independent government bodies by stocking them with faithful supporters, as in the protracted but so far successful battle to place Peter N. Kirsanow, a conservative lawyer, on the United States Civil Rights Commission (see United States v. Wilson, 290 F.3d 347 (D.C. Cir.), petition for cert. filed Aug. 7, 2002, No. 02-217).

(6) See generally Symposium, The Prime Time Election, From Courtroom to Newsroom: The Media and the Legal Resolution of the 2000 Presidential Election, 13 CARDOZO STUD. L. & LITERATURE 1 (2001).

(7) As has been explained elsewhere: "The very existence of `First Monday' suggests how large the post-Bush v. Gore Supreme Court looms in this litigious society's collective subconscious." Charles Lane, Full Court Press: `First Monday' Doesn't Quite Do Justice to Reality, WASH. POST, Jan. 7, 2002, at A15, available at 2002 WL 2519380.

(8) See further Laura Krugman Ray, The Road to Bush v. Gore: The History of the Supreme Court's Use of the Per Curiam Opinion, 79 NEB. L. REV. 517 (2000).

(9) In this respect, however, the current Court probably is no different from most of its predecessors. See Mark Tushnet, Renormalizing Bush v. Gore: An Anticipatory Intellectual History, 90 GEO. L.J. 113 (2001).

(10) Shannon McCaffrey, Rehnquist Again Says No to TV But Okays Audiotape, NEWARK STAR-LEDGER, Nov. 29, 2000, at 26, available at 2000 WL 29893374.

(11) See further Shannon McCaffrey, Cameras in Federal Courts Sought, AP ONLINE, June 5, 2001, available at 2001 WL 22109298 (discussing how the Court's decision has improved the prospects of the Sunshine in the Courtroom Act, a bill co-sponsored by Senators Charles E. Grassley of Iowa and Charles E. Schumer of New York).

(12) See generally Laurie Asseo, Law Schools Find Bush v. Gore is Useful Teaching Aid; Court's Role Spurs Lively Student Debates, WASH. POST, Feb. 18, 2001, at A18, available at 2001 WL 2544779.

(13) Cf. Carol Ann Campbell, 2000's Best Quotes: Lingering Words, Unlikely Sources, NEWARK STAR-LEDGER, Dec. 31, 2000, at YR2, available at 2000 WL 31397078 (noting that Justice Scalia's remark "will forever alter the nightmares of young lawyers.").

(14) See Bush v. Gore, 531 U.S. at 109 ("Our consideration is limited to the present circumstances....").

(15) For a striking example of this truism, see Barry Friedman, Failed Enterprise: The Supreme Court's Habeas Reform, 83 CAL. L. REV. 485 (1995) (demonstrating how the Court's effort to simplify and speed up the habeas process resulted in its becoming even more cumbersome and time-consuming).

(16) See Gore v. Harris, No. CV 00-2808 (Fla. Cir. Ct. Dec. 9, 2000), reprinted in ROBERT M. JARVIS ET AL., BUSH V. GORE: THE FIGHT FOR FLORIDA'S VOTE 281-82 (2001).

(17) See Doyle McManus et al., Election 2000: A Recount--Bush Still Had Votes to Win in a Recount, Study Finds, L.A. TIMES, Nov. 12, 2001, at Al, available at 2001 WL 28928250.

(18) See further Erwin Chemerinsky, Bush v. Gore Was Not Justiciable, 76 NOTRE DAME L. REV. 1093 (2001). Professor Chemerinsky's article also contains useful discussions of three other subjects discussed herein: ripeness, the political question doctrine, and federalism.

(19) The Court's failure to consider the issue of standing is explored further in Michael Abramowicz & Maxwell L. Stearns, Beyond Counting Votes: The Political Economy of Bush v. Gore, 54 VAND. L. REV. 1849 (2001).

(20) See Gore v. Harris, 772 So. 2d 1243 (Fla.), stayed, 531 U.S. 1046, rev'd, 531 U.S. 98, and remanded to 773 So. 2d 524 (Fla. 2000).

(21) Hawkins, 183 F. Supp. 2d at 1103.

(22) For an enlightening discourse of the role the political question doctrine should have played in Bush v. Gore, see Samuel Issacharoff, Political Judgments, 68 U. CHI. L. REV. 637 (2001).

(23) A useful discussion of this aspect of the Court's decision can be found in Francis X. Beytagh, Bush v. Gore: A Case of Questionable Jurisdiction, 2 FLA. COASTAL L.J. 367 (2001).

(24) In fact, the question has been raised--and at least partially answered--in Frank I. Michelman, Suspicion, or the New Prince, 68 U. CHI. L. REV. 679 (2001).

(25) See generally Martin D. Carcieri, Bush v. Gore and Equal Protection, 53 S.C. L. REV. 63 (2001).

(26) See Save Palisade FruitLands v. Todd, 279 F.3d 1204 (10th Cir.), petition for cert. filed, 70 U.S.L.W. 3710 (May 7, 2002, No. 01-1651), and Green Party of State of New York v. Weiner, 2002 WL 221590 (S.D.N.Y. 2002).

(27) See, e.g., People v. Chhoeun, 2002 WL 502523 (Cal. Ct. App. 2002); People v. Denton, 2002 WL 453733 (Cal. Ct. App. 2002); People v. Patlan, 2002 WL 1897963 (Cal. Ct. App. 2002); People v. Pena, 2002 WL 118650 (Cal. Ct. App. 2002); People v. Warren, 2002 WL 307579 (Cal. Ct. App. 2002); State v. Smart, 2002 WL 1969341 (Wis. Ct. App. 2002).

(28) Vallien v. State ex rel. Dep't of Transp. & Dev., 812 So. 2d 894, 904 (La. Ct. App.), writ denied, 818 So. 2d 785 & 786 (La. 2002).

(29) Hecht v. Barnhart, 2002 WL 1963969 (E.D.N.Y. 2002).

(30) Ways v. City of Lincoln, 2002 WL 1742664 (D. Neb. 2002).

(31) See Bush v. Gore, 531 U.S. at 110.

(32) Id. at 127.

(33) For a further discussion of this point, see James M. Fischer, Discretion and Politics: Ruminations on the Recent Presidential Election and the Role of Discretion in the Florida Presidential Election Recount, 69 U. CIN. L. REV. 807 (2001).

Robert M. Jarvis is a professor of law at Nova Southeastern University in Fort Lauderdale and a co-editor of BUSH V. GORE: THE FIGHT FOR FLORIDA'S VOTE (2001). This article is based on a speech the author delivered to the Federal Bar Association's Broward County chapter in January 2002 and is current through September 1, 2002.