The Magazine

An Act of Courage

Under Rehnquist's leadership, the Court did the right thing

Dec 25, 2000, Vol. 6, No. 15 • By NELSON LUND
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GENERATIONS of law students have learned that the U.S. Supreme Court should avoid entanglement in "political" cases in order to preserve its reputation for impartiality. Unless, of course, such cases involve certain selectively chosen constitutional principles, which invariably call for the uninhibited expenditure of this carefully husbanded political capital.

Some of the more conservative justices have bought into this excessive and asymmetrical concern with protecting the Court's reputation. The decision in Bush v. Gore, however, suggests that a majority are now willing to enforce the law more evenhandedly, even when that very evenhandedness will subject the Court to strident political attacks.

The High Court's decision at first glance looks important primarily for its effect on this one presidential contest. The holding is deliberately narrow, and seems unlikely to have significant effects on future elections. The broader significance lies in a passage near the end of the majority opinion, where the justices stress their sensitivity to the limits of judicial authority and the wisdom of leaving the selection of the president to the political sphere. Despite these considerations, they say, it sometimes "becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront."

The Court could easily have avoided this responsibility, and that is what many observers expected. These expectations had a real foundation. In 1992, for example, the Court reaffirmed the judicially created right to abortion, even while strongly hinting that some of those who voted to do so had serious misgivings. One important reason they gave for their decision was a fear that overruling Roe v. Wade would be perceived as a capitulation to political pressure.

Bush v. Gore rejects this beguiling logic. The majority, including two justices who had joined the 1992 abortion opinion, recognized that their decision would subject them to merciless, politically motivated attacks. But rather than take the easy way out, they courageously accepted their "unsought responsibility" to require that the Florida court comply with the Constitution.

The significance of this act of courage comes into focus when we consider the strongest argument offered by the dissenters. Justice Breyer, who admitted that the Florida court's decision was arbitrary and unconstitutional, suggested that the Twelfth Amendment assigns Congress (rather than the federal courts) the responsibility for correcting such problems. This is a plausible interpretation of the Constitution, especially if one also concludes (as Justice Breyer did not) that the Constitution authorized the Florida legislature to override the Florida court's attempted retroactive rewrite of the state election statute.

But Justice Breyer's position does not rest on a disinterested interpretation of the Constitution. Rather, it is based on the tired theory that "the appearance of a split decision runs the risk of undermining the public's confidence in the Court itself." Justice Breyer thought the risk not worth running because the majority's decision does not "vindicate a fundamental constitutional principle."

What would it mean to "vindicate a fundamental constitutional principle"? As it happens, we know what Justice Breyer means. Just a few months ago, he wrote the majority opinion in a 5-4 case that split the Court much more bitterly than this one. In that case, moreover, Justice Breyer adopted a farfetched interpretation of a state statute that contradicted the state's interpretation of its own law. The result was the invalidation of a state statute that had been drafted specifically to conform with Supreme Court precedent. And what fundamental constitutional principle was vindicated? The right to what is euphemistically called "partial-birth abortion." Now there's something worth fighting for.

If the Twelfth Amendment argument is the best that the Bush v. Gore dissenters had to offer, the worst was Justice Stevens's claim that Governor Bush irresponsibly impugned the impartiality of the Florida judges by appealing their ruling. Justice Stevens also noted that the real loser in this year's election will be the nation's "confidence in the judge as an impartial guardian of the rule of law." It is certainly true that almost no one will believe that all the judges who ruled in the election cases were impartial, or devoted to the rule of law. Justice Stevens, however, was entirely wrong to place the blame for that fact on his colleagues and on Governor Bush.

The blame rests squarely on Florida's supreme court, which violated the Constitution, and on the High Court dissenters, who would have let the Florida judges get away with it. "Impartial guardians of the rule of law" are willing to enforce the law even when they know they will be excoriated for doing so. Which is why the majority decision in Bush v. Gore deserves a spirited defense.

Nelson Lund is professor of law at George Mason University in Arlington, Virginia.