DISORDER IN THE COURT: The Supreme Court and the 2000 Election

Wednesday, November 14, 2001

On December 12, 2000, the Supreme Court of the United States brought an end to thirty-six days of dramatic vote recounts and legal challenges in the state of Florida. The decision let stand the initial results of Florida's election, which gave the state's electoral votes, and thus the Presidency, to George W. Bush. What was the legal justification for the Supreme Court's decision? Should the Court have intervened in the first place? And what precedent did the Court create for future elections?

Recorded on Wednesday, November 14, 2001

Peter Robinson: Today on Uncommon Knowledge, Judging the Judges. The Supreme Court and the 2000 election.

Announcer: Funding for this program is provided by The John M. Olin Foundation and The Starr Foundation.

[Music]

Peter Robinson: Welcome to Uncommon Knowledge. Our show today, Bush vs. Gore, how the Supreme Court of the United States chose or didn't our President.

First a brief review. The voting on November 7th showed George W. Bush the winner in Florida, but by such a tiny margin that there was an automatic recount. The recount showed Bush the winner again, but again by a very tiny margin. Al Gore protested. In a series of remarkable decisions, the Florida Supreme Court permitted manual recounting of the votes to begin. The counting and recounting and re-recounting continued for some thirty-six days until on December 12th, the Supreme Court of the United States brought the entire drama to an end. Did the Supreme Court do right? Joining us, two legal experts. Pamela Karlan is a professor of law at Stanford University. Richard Posner is a Judge on the United States Seventh Circuit Court of Appeals and the author of the book, Breaking the Deadlock, the 2000 Election and the Courts.

Title: Courting Disaster

Peter Robinson: Alan Dershowitz, professor of law at Harvard says the Supreme Court's decision in Bush vs. Gore, quote, "May be ranked as the single most corrupt decision in Supreme Court history," closed quote. Judge Posner.

Richard Posner: I--I wouldn't--I wouldn't agree with that, cause I don't know what other corrupt decisions he has in mind to rank…

Peter Robinson: Does that strike you as--as an outrageous statement, or can you see what he's getting at?

Richard Posner: Oh I understand his reasoning process, but it is--it's outrageous in the sense that, to make a charge that serious you--you--you ought to be able to substantiate it more strongly than he does.

Peter Robinson: Pam?

Pamela Karlan: It's a bad decision, but it's not a corrupt decision.

Peter Robinson: Not corrupt. Okay, the first question to ask is should the court have taken the case in the first place? Justice Breyer in his opinion made the flat statement, I quote him, "The Court was wrong to take this case". Was it?

Richard Posner: No I think it--I think it had--I mean if it hadn't taken the case, people would ask what exactly is the Supreme Court good for? That is this was a major potential crisis involving of course the President of the United States, that's a Federal Office. So I think if the Supreme Court had ducked it, it would have seemed, um, cowardly and just, you know, not stepping up and taking a swat at this alarming pitch.

Peter Robinson: Pam?

Pamela Karlan: Yeah, but you're supposed to wait till you're at bat for the pitch and that's where I think the Supreme Court really made a mistake. They shouldn't have taken the case in November and in December I think they should have wai…

Peter Robinson: In November they did what? Re--Remind us a little bit.

Pamela Karlan: They--they--they took the case in November to decide whether or not the Florida Supreme Court could order Catherine Harris to except the late filed ballots from the first round of recounts.

Peter Robinson: Right, and that they should have let go.

Pamela Karlan: I think they should have left that go.

Richard Posner: You know, I don't agree, because actually the--the--the legal issues in some ways were more crystallized in that case. Because what the Florida Supreme Court had done in extending a statutory dead line overriding the election officials was so at variance. I--I would argue with Florida law, that they really raise this question whether the Florida Court was usurping a legislative prerogative to determine how the State's Presidential electors, ah, would be selected.

Pamela Karlan: I think we'd probably disagree on the article two argument, which is this question about the State Legislative prerogative versus the Federal prerogative, or the Courts prerogative to decide how electors are chosen. Um, I think if you take Judge Posner's view of article two, then they were right to take the case in November because the article two issue was already starting to bubble to the surface. If on the other hand you don't agree with the article two issue, if you think Florida law was set up in a way that allows the Florida courts to review…

Peter Robinson: So you can't even ask the preliminary question should they have taken the case or not, without already having come to quite a deep conclusion, deep constitutional conclusion?

Richard Posner: Well so--I mean clearly, for them to be--for the Supreme Court to be authorized to take the case, there has to be some colorable Federal ground--Federal issue, um.

Peter Robinson: And article two is it.

Richard Posner: To me it's--it's the only colorable ground.

Peter Robinson: Okay and article two says that the electors shall be chosen by each state as the legislator of the state decides. And so the simple notion is that the Florida court so--it--it's decision so effectively re-wrote the laws the state legislature had to lay down that they were in violation of the constitution itself?

Richard Posner: Yes, that's the argument exactly.

Peter Robinson: And you don't go for that?

Pamela Karlan: No, I don't go for that. Because I think the Florida law was such a mess and so indeterminate in exactly what should be done that the normal process of judicial review that the Florida constitution sets up in which the Florida legislature bought into in the electoral context should of occurred here.

Peter Robinson: When you say here, you mean?

Pamela Karlan: In this case that the Florida courts had to interpret some pieces of Florida law that were contradictory to one another and decide how that law should be applied to a situation which neither the legislature nor anyone else had ever foreseen before.

Peter Robinson: Okay.

Peter Robinson: Let's examine the Supreme Courts decision in detail.

Title: Tyranny of the Majority

Peter Robinson: Now the decision produces a welter of--of decisions actually. We get the unsigned by the court decision. We get concurrence of three of the most conservative justices and separate descents by four of the most liberal justices. We begin with the majority decision. Seven justices agreed that the recount decreed by the Florida court was unconstitutional because it violated the equal protection clause of the 14th amendment. Judge Richard Posner writes, and I quote, "This is not a persuasive ground". How come?

Richard Posner: The election itself had--had been fraught with, um, inequalities owing to the fact that election administrations decentralized down to the county and even the precinct level. Uh, there's no reason to think that Florida Supreme Court's recount order would have--would have made the election process more un-equal.

Peter Robinson: You start with a situation in which, from precinct to precinct and county to county, different kinds of machines are being used, different methods of--of engaging in recounts are being used and that's, you start from that point.

Richard Posner: So given the built-in inequalities, it wasn't clear that the re--recount order would make things worse.

Peter Robinson: Okay; now here's a question for both of you. What you have just said sounds to me obvious on the face of it, and yet seven justices signed a decision. They didn't sign the decision, but seven justices agreed that the recount was un-constitutional on this equ--because it violated the equal protection clause of the 14th amendment. What did they have in mind?

Pamela Karlan: I think they had in mind a process in which no matter where a ballot was counted during the recount process, the result, the decision about who the voter had voted for would be identical. Um, that's never been the ruling in--in any state. They ra--basically are two ways you can look at ballots. One is you can have a very rigid set of rules. For example, in the old days in Illinois when they had paper ballots, you had to make an X and the two lines in the X had to cross in the middle of the square or else the ballot was invalid. Well under those rules, um, everybody who looks at a ballot will agree on whether the lines crossed or not, I mean, unless they're blind. Um, most states though had moved to a different system, which was a system in which, if you looked at the ballot and you could discern a voter's intent, you would count the ballot. Now that's gonna depend somewhat on the eye of the beholder.

Peter Robinson: So you introduce…

Pamela Karlan: So you introduce a subjective…

[Talking at the same time]

Peter Robinson: Is the chad dimpled or not? Did the--did the pen hit the paper but failed to push it through?

Pamela Karlan: That's right. And if you look at the media reports about the different ways that NORC counted the ballots, you see that different counting of the ballots results in swings of about 700 or 800 votes in Florida.

Peter Robinson: Do you agree that this agreement, that--that--that the seven justices agreeing on the 14th amendment grounds, that that was in effect silly?

Pamela Karlan: Well I don't--I--I don't think seven justices agreed. I think five of them thought this recount is bad and can't be fixed. Two of them thought there will be a problem if at the end of this process it turns out the votes have been counted very differently. But Justice Souter and Justice Breyer were prepared to wait and see how the Florida Supreme Court reviewed the recount when it came back.

Peter Robinson: On to the concurring opinion in support of the majority decision stopping the recounts, which was signed by three justices.

Title: Article of Faith

Peter Robinson: Let's go to the other ground, which is stated in the concurring opinion signed by Chief Justice Rehnquist, Justices Scalia and Thomas. The most reliably, I think we would all agree the most reliably conservative three members of the court. Now Rehnquist says, I'm quoting in bits and pieces here, although "Comedy and respect for Federalism" would normally compel the Justices to defer to a State courts interpretation of state law, that is to defer to the Florida high court. Uh, the constitution imposes certain limits when it comes to procedures for Presidential elections in particular article two. Again, Rehnquist quotes, provides that the electors of each state and Rehnquist quotes the Constitution are selected in such manner as the legislature thereof may direct. And Rehnquist italicizes the word legislature. Okay, that's the ground that you feel comfortable with?

Richard Posner: Yeah

Peter Robinson: That's the cogent part of the decision?

Richard Posner: Yeah. I don't think it's--I don't think it's a very cogently written concurring opinion. Of course they didn't have much time. But uh, no one knows how many of the Justices actually subscribed in their hearts to this equal protection ground. You can see how it might just sort of have--have emerged. But uh--but not uh…

Peter Robinson: So it's plausible too that Rehnquist and Scalia and Thomas said wait a minute, the real ground here are article two, but what the heck, we'll go along with it…

Richard Posner: Yeah. I--I--I think that's…

[Talking at the same time]

Richard Posner: Well I think that's--I think that's not unlikely. Because if they had said equal protection ground is non-sense and Article 2 is the only way to go, then although there would have been a majority for stopping the recount, there would also have been a m--a separate majorities rejecting both grounds for the decision.

Peter Robinson: Okay, so…

Richard Posner: And that would have looked very, very bad. So you can imagine these very conservative Justices swallowing--swallowing their, uh, tongues, or, what the expression is. Holding their breath, I should say.

Peter Robinson: She's like them to swallow their tongues.

Richard Posner: And, holding their breath and saying alright we'll go along with this, provided, then there's this foot note that majority opinion about basically this case is not to have any Presidential effect in future cases. So they--they--they limit the equal protection ground to this decision.

Peter Robinson: They know it's a mess, in effect.

Richard Posner: J--yes.

[Talking at the same time]

Peter Robinson: There's a little telegraph there, by the way, we know this one is sloppy folks.

Pamela Karlan: Well an equal protection clause is a very popular clause of the Constitution. And if you think about trying to explain to the American people that this really relies on Article 2 and that in such manner as--as the legislature may direct…

[Talking at the same time]

Pamela Karlan: It looks very technical and--and hard for a lot of people to understand off the bat. Whereas the equal protection clause, and the Supreme Courts intervention in the political process, using the equal protection clause is one of the most popular things they've ever done. One person, one vote is probably the most popular radical decision by the Supreme Court in its history.

Richard Posner: But you know, they have--they--they need--they need to take courses in public relations. Because uh, the problem with the using equal protection clause as the base of their decision is that these, they have the conservatives, well actually the conservatives, they both have track records in equal protection. So the press can say, oh, but, you know the liberals--the liberals, you--you said there was not equal protection problem here, or not a serious problem. But, in the past you've been running with equal protection and then

[Talking at the same time]

Richard Posner: That's very, that was stupid. If they had put this on Article 2, which was last before the Supreme Court, I think first also in 1892, no one could say, well, but last year, you said Article 2 meant thus and so. Also…

[Talking at the same time]

Peter Robinson: He's calling them stupid.

Richard Posner: No, uh, not--not as individuals, just the result. If you say to the American people, look, there's this very technical clause, Article 2, you don't know anything about it, cause you're not a lawyer. And that required this result. And that's just, you know, it's just written there and that's it.

Peter Robinson: That's just the way it is.

Richard Posner: And the--the press can't do anything with it and the people can't do anything with it. And then…

[Talking at the same time]

Peter Robinson: That's a nice clean judicial…

[Talking at the same time]

Pamela Karlan: Unfortunately you couldn't get five Justices who thought that.

Richard Posner: Well, but I think two of them, uh, who will remain nameless, I think made a tactical error and abandoned the Article 2 ground in favor of equal protection. Because remember, the first Supreme Court decision…

[Talking at the same time]

Peter Robinson: But their initials are Kennedy and O'Connor. Go ahead.

Richard Posner: The--the first, the December 4th decision was unanimous. And it said there's a potential Article 2 problem. So on December 4th they all recognized, I think we all agree, you could have an Article 2 problem. Now whether you do or not, that's where, that's where Professor Karlan and I disagree, you could say no, what the Supreme Court of Florida did was not sufficiently outlandish to be thought of as usurpative, it was still within the domain of reasonable interpretation.

Peter Robinson: And that's your position?

Pamela Karlan: Yeah.

Richard Posner: Yeah.

Peter Robinson: One case, but more than half a dozen decisions riddled with inconsistencies. What should we make of this mess?

Title: Disorder in the Court

Peter Robinson: Can I just ask you if you agree effectively what Richard is saying here is that the shear messiness of it is nothing that should alarm the American public. It should not taint or in any way diminish the standing of the court. They're still intelligent people. They were under pressure. They were doing an extremely difficult job and they had to stitch something together. And that's just the way life is in the Supreme Court, right? You go with that?

Pamela Karlan: I don't think the messiness of it undermines the courts standing. But I think it's part in parcel of a consistent position of the current court, which is they are better able to decide every issue than any other branch of the government. So they mis-trust congress. I mean I think one of the reasons they didn't want to throw this into congress is they've already decided congress is a bunch of idiots, um, so they don't trust congress to decide…

Peter Robinson: It's a narrowly held view, by the way.

Pamela Karlan: Well, but it's a view held by the Supreme Court that you can't trust Congress to decide what the appropriate way of protecting the disabled is or protecting the aged. You can't trust Congress to decide criminally. Why trust them here?

Peter Robinson: Before we leave this article two, hold on Pam, I've got--we've got Richard Epstein, Michael McConnell arguing that--that, legal scholars, arguing that the Florida court went far beyond what was required to make sense of the Florida law, election law. Now you're saying well, clause here and clause, they don't really fit well together, the court had to make sense of them somehow. They're saying bologna. They trans--they--they over-rode a straight forward statutory dead line and they transformed - fortunately the Florida election law concerned with errors and vote tabulation into a mandate to correct errors by the voters themselves and casting their votes, which is a clear switcharoo. So isn't she on narr--I mean it was a clear usurpation wouldn't you say?

Richard Posner: Not--not for exactly the reasons you read. But yes. But I think--I think for a different, there's actually a much simpler reason, that the Florida statue, unlike, for example, the Texas statue, which got a lot of play during the debates, because Texas statue is just very specific about how you do a recount. You count dimples and so on and so forth. When you have to, uh, count hanging chairs. But the Florida s--statues seems to proceed on a different premise, which is that the--the--the decisions will be made by the election officials subject to very light judicial review. So they decide what is vote tabulation mean? Can you extend the statutory deadline for this reason? And that's where the Florida Supreme court went off the rails. It just forgot that under, you know, standard principles of administrative law, which are also principles of Florida administrative law, when you have a statue that grants discretion to administrative officials to interpret and apply, you know, dif--difficult, um, to resolve difficult issues, how long is too long to allow a recount, that sort of thing. You leave it up to these people, as long as they're reasonable, as long as they make reasonable judgments, you defer to them.

[Talking at the same time]

Peter Robinson: So, the Florida Secretary of State, Catherine Harris was doing her job as best she could. She was clearly making reasonable decisions. And the Florida court had not call to go in and over-turn her and tell her how to do the job instead?

Pamela Karlan: I think that's a close question on the initial case that went up to the Supreme Court about whether she had to accept late filed ballots.

Peter Robinson: Right.

Pamela Karlan: I think though that the Florida Supreme Court was well within the bounds of the later so-called challenge or contest phase in deciding that, if they had a serious doubt about what the results of…

[Talking at the same time]

Peter Robinson: This is television, so we can't go on too long unfortunately, but where exactly do you disagree with the way that Judge Posner just stated the case?

Pamela Karlan: Even if Catherine Harris had discretion to decide wheth--whether to certify the initial results or not, there was still a provision under Florida law after she certified that allows for a judicial contest, for a lawsuit challenging the results of an election after its been certified. And there, I don't think the Florida courts went off the rails, I can see…

Peter Robinson: Now let's take a look at the dissenting opinion in Bush vs. Gore.

Title: You Can Recount On Me

Peter Robinson: You had Ginsburg, Justices Ginsburg, Stevens, Breyer and Souter all agreeing that the Florida high court did not usurp the role of the legislature. That in fact, as Pam has argued, the Supreme Court of the United States should have deferred to the Supreme Court of Florida. Now, Souter and Breyer, as we've said, agreed that there was a problem on equal protection grounds. But they said the solution is to flip it right back to the Florida Supreme to let them figure out uniform standards. Judge Posner is on record as calling this suggestion ridiculous. Why was it not ridiculous?

Pamela Karlan: Well, because I think that they could have conducted the recount in compliance with whatever the equal protection clause requires in--in not that many days, I mean, a week.

Peter Robinson: Can I just--all right, so the Supreme Court hands down its decision on the 12th of December…

Pamela Karlan: Right, they could have had it done by the 18th.

Peter Robinson: And the 18th they're due.

Pamela Karlan: Right.

Peter Robinson: And how can you say that when this recount we've been talking about, the media recount took a year?

Pamela Karlan: Well, because the media recou…

Peter Robinson: A year?

Pamela Karlan: The media recount did a--a lot of things that…

[Talking at the same time]

Pamela Karlan: It wasn't just that--it wasn't just that it was careful and judicious, they coded each ballot according to eight different criterias so you could figure out later on if this was the rule under which the recount occurred, what would the result have been? If this was the result so that…

Peter Robinson: You really think a recount could have been conducted of all six million votes, or just the--the hundred and seventy-five thousand contested ones?

Pamela Karlan: Well there was even fewer than that because it was just the ones that were…

[Talking at the same time]

Richard Posner: Sixty-thousand left.

Peter Robinson: Sixty-thousand, so you could have whipped through ten thousand of things a day, like this? With the three people sitting--looking at--do you really believe that?

Pamela Karlan: Canada counted thirteen million ballots in four days by hand.

Peter Robinson: Yes, but you're dealing with Canadians, prudent people, not too contentious.

Pamela Karlan: Oh I guess California…

Richard Posner: Now see the problem is--I think the problem with the sixty-thousand is, they were going to be counted all over the states…

Pamela Karlan: Right.

Richard Posner: …all over the state by lots of different people, so there w--there was going to be some sort of consolidated judicial review in Tallahassee. But just getting the ballots to Tallahassee for the review, that takes days. So I think it would've taken weeks and then with--including the judicial challenges. And then--then--then you're, you know, then you get--then you're into January and I don't know what happens. When Congress meets in January 6th and they're still recounting votes or having, you know, judicial challenges in Florida to the recount, then--then I think we really have a mess.

Peter Robinson: Question of judici…

Peter Robinson: Conservative legal scholars such as Judge Posner himself are usually in favor of judicial restraint, but Judge Posner seems to be advocating something else.

Title: Just Do It

Peter Robinson: Now, Judge Posner, it breaks my heart to suggest this, but you're an activist too.

Richard Posner: Yes.

Peter Robinson: You say in effect, look, the constitutional grounds for stepping up and making this decision cutting off the recount are on the--on the grounds that you could get enough justices to agree to, those are lousy grounds. And the grounds that were correct, you could only get three justices to agree to. Nevertheless, the court had to act and do what it did. How come? Because we were headed toward a national crisis. So you, le--eminent legal scholar say, you know what they did the right thing not bec--not for constitutional reasons, but they responded correctly to the politics of the moment. You're an activist.

Richard Posner: I don't like--I don't like your phra--I don't like your term politics of the moment though.

Peter Robinson: All right, the crisis of the moment.

[Talking at the same time]

Richard Posner: Yeah, no there's a good--there--there would have to be a constitutional handle. The Supreme Court couldn't just, uh, uh issue decisions--issue a decision without a case that, you know, invoked its jurisdiction. But I think there was en--enough there for them to uh--uh jump in. You can call it--if you wanna call it activism that's--that's fine.

Peter Robinson: Your preferred term is pragmatism?

Richard Posner: I wouldn't say prag--I--I think the activist restraint spectrum I think is more usefully, more precisely limited to situations where you're talking about courts, uh, aggrandizing themselves at the expense of other branches of government.

Peter Robinson: Okay.

Richard Posner: And in this case, it--this is a very complicated case because as--as Professor Karlan was saying, you could say, well this is the Supreme Court aggrandizing itself at the expense of every other branch of government including Congress. Or you could say this was the Supreme Court siding with a state legislature against a state court, so its not actually, uh, amplifying it's own power. It's judicating, it's arbitrating between two, uh, branches of government.

Peter Robinson: So what about, say Scalia and Thomas, who are in some ways even purer, uh, in their strict interpretation of sticking to the original intent of the constitution and so forth, even purer in some ways than Rehnquist. What about this that they partic--they--they actually broke down and accepted Judge Posner's view that the reason to act to vote with the majority was not constitutional, but simply in some way the National good? And that strips them of all their pretenses to original intent. When it came right down to a moment of crisis, they just did what they thought was best, even if they couldn't root it as tightly as they ought to in the constitution, is that what happened?

Pamela Karlan: Well, they really shouldn't have joined the majority opinion and I think Judge Posner's explanation for why they joined is the only conceivable one, which is they…

Peter Robinson: The only construction that makes any sense.

Pamela Karlan: That--that--that they joined it because they thought it would be really terrible to have two opinions with Justice O'Connor and Justice Kennedy saying we think this is an equal protection problem and seven Justices saying no not really and three Justices saying, we think this is an article two problem and six Justices saying, no, not really.

Richard Posner: I thought your statement of what is really going on I thought was--was right on point, about stripping away the pretensions of this stuff.

Peter Robinson: And that's what drives Dershowitz crazy, doesn't it?

Richard Posner: Well, yeah, well that's what--well I'd say that's what arms him because I think these Supreme Court Justices have made a very serious tactical mistake in embracing this kind of formalistic discourse. This discourse of deference--we're just, you know, we're just historians, we're looking in the dictionary of 1787 and that's what the word mean. I--I don't believe they--I don't think any American judge can operate on that premise. I don't think these conservative Justices do, but they say they do and then when they say one thing and do the opposite, then of course they invite just the type of criticism that uh, Dershowitz makes…

Peter Robinson: It's television alas, so I have to reduce it to one last question. Headline in the New York Times the day after the media consortium finally completed its recount one year after the voting finally ended, by the way Pam. Quote, "Study of disputed Florida ballots finds Justices did not cast the deciding vote," closed quote. If the Supreme Court didn't choose the President, what did it do? A decade from now, when legal scholars look back on Bush vs. Gore, what significance will they attach to it? Pam?

Pamela Karlan: That the Supreme Court embarrassed itself with its reasoning and, uh, ultimately decided a case that seemed very important and that had no judicial legs at all.

Peter Robinson: Judge Posner?

Richard Posner: This--I think national opinion research center is responsible and I imagine they--they did a fine job and so on, but they can't--they didn't--this goes back to a point Professor Karlan made, they didn't purport to duplicate what would have been done under the order of the Florida Supreme Court. So it's quite possible that that recount would have shown, uh, Gore ahead because we don't know whether the people counting would have been neutral and how the Judges would react and so on. So I think the--I don't--I don't think you can get the Supreme Court off the hook and say it didn't make any difference. They did--they did make a difference and I--I think probably most people will make their judgment of the Supreme Court on the basis of whether they think Bush does a good job as President.

Peter Robinson: Judge Richard Posner, Professor Pamela Karlan, thank you very much. For Uncommon Knowledge, I'm Peter Robinson, thanks for joining us.