Email: Liberal Drift

A reader asks the following question:

"[A]bout the Liberal Drift post--you make a pretty
convincing case, but you didn't mention the elephant in the
room--Bush v. Gore. It seems to me that this case will be the
primary, and perhaps only, think the Rehnquist court is going
to be remembered for 100 years from now. While I don't
necessarily buy the conspiracy theories completely, it seems
to me that this decision was, separate from whichever candidate
you supported, simply indefensible from a legal standpoint, and
that they must have known at the time that they were botching
the legal case. To me, it seems that either a majority of the
SCOTUS really really wanted Bush to win, legacy be damned,
or the court simply choked in the clutch. So how does
Bush v. Gore fit in to your thesis?"

This is a good question and a complicated one. I should first say that my initial reaction to Bush v. Gore was similar; I saw it as transparently political and unprincipled. Since then, however, I've had a chance to study the opinion in some depth and to hear a number of well-respected legal scholars (many of whom are quite liberal) discuss the case. The truth is, the legal question presented in that case was a very difficult one that involved a complicated interplay between state and federal law. On the merits, the majority opinion is defensible.

Perhaps the most interesting aspect of Bush v. Gore, however, are the rumors of what went on behind the scenes. I've never been able to confirm this, but the rumor I've heard is that Souter was pushing for a ruling that would have sent the matter to the House of Representatives to decide (as the Constitution requires when no candidate secures an electoral majority). According to the rumor, Souter came very close to convincing Kennedy, who would have been the fifth and deciding vote, to go along with his plan. Ultimately, however, Kennedy went the other way. It's important to note, however, that under Souter's plan, Bush still would have been elected President given the Republican majority in the House. So either way, Gore would not have been President. Under this scenario, however, Bush and the Republicans would not have had the political cover of a Supreme Court decision. The act of electing a President who lost the popular vote would have cost the Republicans a lot of political capital and presumably forced them to make some concessions to the Democrats. This may well have been a better outcome.

This story (if true) also illustrates the awareness of history that I discussed in my previous post. By all accounts, the members of the Court were very concerned by the Constitutional crisis that was brewing. Even the liberals on the Court felt that they had to do something, that the Court needed to act in a way that would defuse the crisis. If the rumors are to be believed, the crux of the debate was not about who should be President, but rather whether the judicial or political branch should resolve the impass. Kennedy was, apparently, very torn by this question. He and Souter were aware that whatever they decided would have enormous historical significance. Ultimately, I suspect Kennedy's decision was based less on his political preferences and more on his determination that it would be better for the Court to settle the issue than to have the debate spill over into the halls of Congress. But this is pure conjecture; we may never know.

Thanks for the emails and please keep them coming.