I found this article by University of Oregon constitutional law professor Garrett Epps to be a fascinating read, and to offer a perspective that is not partisan, as to why SCOTUS hearing the Bush v. Gore cases in 2000 was a major error on their parts, and why they should remain above the fray in 2004.
Essentially, he runs through what would have happened in the absence of the SCOTUS decisions, demonstrates the strong probability that Mr. Bush would ultimately have been chosen by Constitutional/statutory means, and that the interference of the Court, whether proper or not, in working out the process through the “political branches” contributed to a decline in respect for it without accomplishing anything that would not have occurred without the decision.
I’d be extremely interested in seeing what people think of the case he makes – particularly those who deplore “judicial activism.”
I offer no criticism of “judicial activism”. I agree with Epps that it was a mistake for SCOTUS to grant cert in the first place. Worse still was to take the case and effectively decide it, rather than providing guidance to the Florida Supreme Court. As Epps points out, the process provided for safeguards through appropriate political means. While the decision may not have been timely, the crisis of indecision was illusory.
Thanks for the link, Metacom. I registered with the Post months ago to read a different article, and never thought about the problem that would cause. (I originally read this article in the Raleigh N&O, where it was the lead Op-Ed piece Sunday.)
Oh, absolutely. Anecdotally, just about every attorney I’ve discussed the issue with agrees that the Supreme Court should have said, “you peons work this out yourselves.”
There were several ugly things about the decision. First, the determination of who is the president is the ultimate political issue, and the Supremes have long rejected political disputes. Second, the decision itself was ugly. While it was hastily written, that doesn’t excuse the internal contradictions and general poor reasoning of the case. The Supremes themselves recognized this by trying to assert that the decision had no precedential value. If it’s properly decided, it should be considered valid and binding precedent.
Third, and most disturbingly, it was an usurpation of the constitutional role of Congress. A constitutional process existed to decide disputed presidential elections, and the Supremes effectively said, “we know better than Congress” (even though, as noted in the article, Congress would probably have come down the same way). Bush v. Gore demonstrates that the system of checks and balances has broken down, or indeed never really existed in the first place. There is no limitation on the power of the Supremes, except that self-imposed. If the Supremes are willing to ignore the traditional self-limitations on their power, the only other limitation is refusal by the Congress or the Executive to adhere to Supreme Court decisions, which way leads to chaos.
'Course, at least one Supreme got hoist on her own petard. O’Connor really wanted to resign. However, it was widely reported before the 2000 election that she stated that she only wanted to resign when a Republican was in the Oval Office (itself, IMO, a very disturbing statement). Once she voted to give the election to Bush, she couldn’t resign until after his term was up without a whole mess of folks screaming “self-interest,” resulting in a huge knock on her reputation. So she had to stay.
A quick question, Sua - is there a precedent for nonprecedential rulings? Has SCOTUS ever before AFAYK made a ruling that they similarly admitted was not based on the law or Constitutional principle and thereby banned it from being used against them in the future?
IF one this election is as close as we all anticipate, and, as a consequence, the 1,000s of lawyers watching the polls bring a mountain of federal vote fraud cases – it stands to reason that conflicts in the decisions of the different Circuits may result. If these cases are expedited through the court system as was done in 2000 — I’m wondering how the SCOTUS can remain out of this election? If this makes any sense - wouldn’t SCOTUS HAVE to resolve these conflicts?
There is not precedent for nonprecedential rulings because they are a practical impossibility.
Let me back up. The Supremes did not actually write that Bush v. Gore cannot be used as precedent, nor, obviously, did they explicitly admit that the ruling was not based on the law or Constitutional principle. Instead, what the Supremes said was that the decision in Bush v. Gore was limited to the facts of the case - IOW, that the facts presented by the presidential election debacle were unique, and Bush v. Gore would only be binding precedent if precisely the same facts came before a court again.
On rare occasions, others courts have included similar language in decisions. It is effectively an admission that the maxim “hard cases make bad law” - that difficult or unusual cases result in decisions that aren’t particularly defensible under general legal theories and will cause problems when applied to other cases - and is an attempt to limit the damage the precedent causes. But there are two problems with including such language in a decision.
The first is that it is a tautology. Technically, no decision is binding precedent unless the facts in the later case are precisely the same. But that’s not a good way to run a railroad, and precedents are considered binding where the facts and legal issues are sufficiently similar to the ealier decision that a valid analogy can be made.
The second is that it is unenforceable. Say there is an undercount/overcount issue in a recount for the post of dogcatcher in Bumfuck, Iowa. The lawyers involved are certainly going to look to Bush v. Gore to argue the case, and the judge is certainly going to rely upon Bush v. Gore in making his/her decision. 'Cause there is no better authority for American law than the Supremes, and so the case will be applied, even if it is a (impliedly) self-admittedly bad decision.