Election 2000 - Strange New Restraint.

The aftermath of Bush v. Gore has proven a bonanza for judicial restraint, as everyone from E. J. Dionne to the New York Times is suddenly a strict constructionist. Apologies can be addressed to Robert H. Bork, c/o the American Enterprise Institute, Washington, D.C. The criticism of the Bush decision from liberals ordinarily happy "to trust the people in black robes" (in the words of Doris Kearns Goodwin) is opportunistic, but that doesn't mean it is necessarily invalid.

The Supreme Court's 7-2 per curiam decision relied on the dubious argument that standardless, selective hand counts in Florida violated the Constitution's equal protection clause. But it's unclear why-with the different vote-tabulation systems from county to county, with different levels of accuracy-this line of reasoning wouldn't render Florida's entire electoral system unconstitutional. Or, for that matter, the nation's electoral system. In fact, all of life can be considered a violation of the equal protection clause, which is why the clause has traditionally been the Swiss Army knife of liberal jurisprudence, fit for achieving any result, however arbitrary.

And that wasn't the only weakness in Bush. The Court's conservatives- Rehnquist, Scalia, and Thomas-in their concurring opinion emphasized that the Florida court had violated Title 3, Section 5 of the U.S. Code, which says-quite sensibly-that a state's electors won't be considered conclusive if the rules in an election (oh, say, deadlines and standards for vote counting) change midstream. But the liberal dissenters in Bush argued persuasively that there is no judicial remedy for such a violation of Title 3, that it is the responsibility of Congress to sort out a state's true electors in such a controversy.

So, give the new supporters of judicial restraint their due. But at least Rehnquist, Scalia, and Thomas (if not their weak sisters Sandra Day O'Connor and Anthony Kennedy) did hit on legitimate grounds for overturning the Florida court: that it had violated Article II, Section 3 of the U.S. Constitution, which grants to state legislatures-not judges-the power to set the manner in which states' electors are selected. All of the weaker arguments in Bush can be understood to circle back to this stronger one. On equal protection: There was no statewide standard for hand counts in Florida, but this is because the state legislature granted the discretion for discerning voter intent to county canvassing boards; the Florida court trampled on these canvassing boards. On Title 3: By creating new deadlines and last- minute mandates for new hand counts, the Florida court endangered the legitimacy of Florida's electors in a way the legislature could never have intended. In short, the Florida court set itself as a separate, competing legislative power in the state, which-in a case involving presidential electors, and hence the federal constitution-couldn't withstand constitutional scrutiny.

And this is the essential point: The Florida court, through its judicial lawlessness, forced the Supreme Court to act. (As the majority put it, ruling in Bush v. Gore was their "unsought responsibility.") Yes, as the Bush dissenters argued (opportunistically), political decisions are best left to political bodies, not to courts. But that is an argument for Al Gore never suing in Florida in the first place, for the Florida court never rewriting the state's statutes, and for liberals reconsidering their decades-long dependence on courts to effect their political agenda.