How Bush won.

A Badly Flawed Election Debating Bush v. Gore, the Supreme Court, and American Democracy Edited by Ronald Dworkin New Press, $26.95, 352 pp.

The Longest Night Polemics and Perspectives on Election 2000 Edited by Arthur J. Jacobson and Michel Rosenfeld University of California Press, $24.95, 408 pp.

The Vote Bush, Gore, and the Supreme Court Edited by Cass R. Sunstein and Richard A. Epstein University of Chicago Press, $18, 266 pp.

September 11, 2001, has caused many Americans to forget December 12, 2000. On that date, the United States Supreme Court handed down its decision in Bush v. Gore, which effectively ended the bizarre 2000 presidential election and inspired angry denunciation from many quarters. The recent anniversary of the September 11 atrocities demonstrated that those awful events still ring too freshly in our minds for most of us to envision how they will change American society over time. Three new volumes of thoughtful academic commentary on Bush v. Gore similarly demonstrate that more time must pass to clarify that decision's long-term implications for electoral practices, constitutional law, and the reputation of our highest court.

On November 8, 2000, Americans awoke to the news that the presidential election remained too close to call in the decisive state of Florida. The next month brought incessant political and legal wrangling over recounts. On December 8, a closely divided Florida Supreme Court held that a statewide manual recount of "undervotes"--ballots discarded in the initial count--was proper under Florida election statutes. The state court instructed county election officials to include in their final counts any ballot that indicated a voter's "clear intent." George W. Bush responded to this legal victory for Al Gore by asking the United States Supreme Court to reverse the Florida court's decision. Legal experts thought the request doomed, because deciding the case would require the Supreme Court to second-guess a state court's interpretation of state law and to interfere in the political process. At worst, the experts predicted, the dead heat in Florida would trigger a detailed set of procedures set forth in the United States Constitution for resolving uncertain presidential elections.

The U.S. Supreme Court stunned the experts by agreeing to hear the Bush appeal. Even more surprisingly, the Court ordered an immediate stay of the Florida recounts, halting all efforts toward increased accuracy. The decision pitted the Court's five most conservative members against the four most liberal justices. The same five-justice majority then reversed the Florida court's decision, holding in an unusual, unsigned per curiam opinion that the state court's "clear intent" standard for the manual recounts violated the federal Constitution's guarantee of "equal protection of the laws." The Court's three most conservative members--Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas--argued in a concurring opinion that the Florida court also had interpreted preexisting Florida election statutes so implausibly as to violate another constitutional provision that empowered state legislatures to determine the manner of choosing presidential electors. The five-justice majority concluded that no time remained to remand the case to the Florida court to repair the equal protection flaw, because a federal law allowed congressional challenges to Florida's slate of electors if the slate was not finalized by December 12--the very day the Court announced its decision. The next day, December 13, Vice President Gore conceded the election.

Reading the essays in these volumes leaves no doubt that the Supreme Court majority decided Bush v. Gore incorrectly. To begin with, every lawyer knows that a reviewing court may stay a lower court's judgment pending appeal only if execution of the judgment would cause the appellant "irreparable harm." The Florida recounts presented no such danger--the state could have discounted them later if the Court found them unlawful--but the Court halted them anyway.

The stay looks even worse in light of the majority's announcement three days later that time had run out on the recounts. Likewise, the majority's ultimate refusal to remand the case to the Florida Supreme Court for articulation of a new recount standard rested on pure speculation that the state court would rather shield Florida's electoral slate from the unlikely danger of a congressional challenge than ensure that all ballots in the state were accurately counted.

As for the merits, even the rare sympathizers with the majority's equal protection analysis--notably conservative law professor Michael McConnell (now a Bush judicial nominee) and his liberal counterpart Cass Sunstein--acknowledge that the analysis lacked precedential support and sharply violated the conservative judicial ethos of its five adherents. That tension may explain why the majority took the outrageous step of declaring its reasoning "limited to the present circumstances," thereby denying the precedential force of its own opinion. The three concurring justices' charge that the Florida Supreme Court unconstitutionally rewrote Florida election law receives a more confident defense from Richard Epstein, and several other commentators who correctly note that the concurrence's reasoning is at least arguable. The charge persuaded only three of the nine justices, however, probably because the Court almost always trusts state high courts to resolve arguable questions of state law.

If the majority's stated grounds for decision wilt under scrutiny, how can we explain the result in Bush v. Gore? Many Americans concluded that the five conservative justices, out of pure ideological bias and/or a desire to ensure the appointment of more conservatives to the bench, simply muscled their man into office. The contributors to these volumes reject that theory, none more emphatically than Harvard's Lawrence Tribe--a key member of Gore's Florida legal team--who correctly notes that we cannot know the justices' actual motivations. Conservative Judge Richard Posner and liberal professor Richard Pildes lead the most convincing effort to provide a countertheory for the decision. Posner argues that the Florida manual recounts likely would have led to a constitutional crisis and lauds the Court for pragmatically averting that fate. Pildes, who contributes insightfully to each of these three volumes, criticizes Bush v. Gore as one of several recent Supreme Court decisions that find a danger of chaos in open democratic processes--blanket primary elections, conominations of candidates by major and minor political parties, multiparty televised debates--and thus restrict those processes in order to enforce political stability. Despite their divergent opinions, both Posner and Pildes explain Bush v. Gore as reflecting a genuine principle.

Such an explanation, by virtue of uniting conservative supporters and liberal critics, makes a strong claim for credibility. The Posner-Pildes theory, however, leaves a nagging question: If the majority acted to avoid political chaos, why didn't it say so? In other decisions to which Pildes likens Bush v. Gore, the Court wasn't shy about donning the armor of political stability. In one of those cases, the Court even embraced the constitutionally dubious argument that the danger of chaos entitled states to advantage the two major political parties over minor-party competitors. Perhaps, as Posner maintains, the justices felt compelled to provide a pretextual basis for their decision because they knew rejecting the clear constitutional procedures for resolving close presidential elections exceeded the conventional understanding of their proper role. Indeed, Frank Michelman suggests that a decision based forthrightly on stability concerns would have been, or at least would have appeared, lawless. Surely, however, the nation's leading legal minds could have invoked such concerns in a legally salient way. In any event, whether the majority actually engineered the electoral outcome or merely short-circuited the constitutional process for resolving deadlocked elections, it showed contempt for the Constitution and the American people.

Each of these three volumes has comparative advantages. Jacobson and Rosenfeld provide the best organization and most thorough treatment, encompassing foreign perspectives and varied commentaries on electoral reform proposals. Sunstein and Epstein present the most dazzling array of legal academic all-stars. Dworkin's book, although it feels thrown together and underedited, features the most visionary essay. Lani Guinier properly recognizes Bush v. Gore as only the final disgrace of an election in which Florida disenfranchised African Americans through Jim Crow-style intimidation tactics, Jews and other Palm Beach County residents through the use of confusing "butterfly ballots," and poor people through outmoded voting equipment. Guinier ties the Court's decision to a hierarchical conception of democracy, espoused by both major parties, that leaves most ordinary Americans powerless over their government. For her, the 2000 election proves the need for deep electoral reforms and a broad political shift from elitism toward inclusiveness, so that our electoral process can deliver on the Constitution's democratic promise.

If the five Supreme Court justices responsible for Bush v. Gore doubted in December 2000 the resilience of our national character in times of crisis, one hopes they recognize it now. If those justices, deliberately or unconsciously, subverted the popular will, one must wonder about their worthiness to confront the even more wrenching legal questions of personal freedom and national security that subsequent events have placed on the Court's near horizon. In either event, this failure of the unelected judiciary lends great urgency to Guinier's insistence on an electoral process that gives all Americans power over the decisions that shape their lives.

Gregory P. Magarian teaches at Villanova University School of Law.