Even After the Decision in Bush v. Gore, Our Judiciary Is Still the Least Dangerous Branch

By Randolph J. May
Legal Times, January 1, 2001

In the Federalist Papers , both James Madison and Alexander Hamilton refer to the "celebrated" Montesquieu as "the oracle who is always consulted" on separation-of-powers matters. And consult him they did. In his most influential work, Spirit of Laws , Montesquieu, discussing the powers of the legislature, executive, and judiciary, declared: "Of the three powers above mentioned, the judiciary is next to nothing."

But in light of the role played by the courts, and especially the U.S. Supreme Court, in settling the just-ended presidential election, characterizing the modern-day judiciary as "next to nothing" no longer seems apt.

Much has changed since the first chief justice, John Jay, resigned his position to become governor of New York. After serving two terms, Jay was nominated by President John Adams for a second appointment as chief justice. In a telling commentary on the lack of esteem accorded the pre-John Marshall Court, Jay pointedly declined. His letter to Adams-dated exactly 200 years ago tomorrow-explains: "I left the bench perfectly convinced that under a System so defective it would not obtain the Energy weight and Dignity which are essential to its affording due support to the national Govern[ment]; nor acquire the public Confidence and Respect, which, as the last Resort of the Justice of the nation, it should possess."

Most would agree that the Supreme Court has evolved into an institution that, in the minds of a majority of Americans, possesses the "energy, weight, and dignity" that Jay found so lacking. But with the Supreme Court's intervention in the election dispute, it's fair to ask whether it can maintain the public confidence and respect that Jay said it must possess as the last resort of justice.

No doubt a decision such as Bush v. Gore puts at risk public confidence in the Court's standing even more than when it enters the fray on politically charged issues such as abortion, school prayer, flag burning, and the like. And while it is true (although perhaps not often acknowledged) that the Court's landmark "one man, one vote" decisions on equal protection grounds in Baker v. Carr (1962) and Reynolds v. Sims (1963) had predictable political consequences for districts all across the nation, these decisions did not effectively decide a particular closely contested election. So it was appropriate for Justice John Paul Stevens, in his Bush v. Gore dissent, to worry that "the Nation's confidence in the judge as an impartial guardian of the rule of law" might be the real casualty of the election contest.

Appropriate Under Circumstances

Nevertheless, over time, if not in the heat of the moment, I believe the Supreme Court's decision will come to be accepted by a majority of Americans as an exercise of the Court's power that was appropriate under the circumstances. And, as such, it will be seen by most as an exercise of authority that does not diminish public confidence or respect in the Court as an institution.

Oddly enough, the reason for this may be found in Justice Stevens' dissent. In the sentence immediately preceding his lament about the rule of law, he surmised that "we may never know with complete certainty the identity of the winner of this year's Presidential election."

What a curious statement! We already knew that George W. Bush was the winner because of the consequences that flowed directly from the Court's decision and the respect that Al Gore and his backers rightfully accorded the decision.

What Justice Stevens really may have meant to say is something to the following effect: "We may never know with complete certainty the identity of the candidate for whom most people in Florida intended to vote." This, of course, is true. But ultimately, for the nation's sake in ensuring the finality of the presidential election within our constitutional context, it is irrelevant.

In principle, no one disputes that every legal vote should be counted. But it became evident to the five-justice majority that there was no principled basis upon which to devise a fair method for a further recounting of votes within the time constraints contemplated by Florida's legislative scheme enacted to carry out the legislature's responsibilities under Article II of the U.S. Constitution. Even the Florida Supreme Court did not discount the importance of this deadline. Lost in the shuffle of the U.S. Supreme Court's Dec. 12 decision was the Florida Supreme Court's Dec. 11 decision responding to the remand from the first U.S. Supreme Court decision. The Florida court adhered to the importance of Dec. 12 "as the date for final determination of any state's dispute concerning its electors in order for that determination to be given conclusive effect in Congress."

Along with Justice Ruth Bader Ginsburg, some have argued that, absent the Court's Dec. 9 stay, the likelihood of completing a recount within the constitutional constraints would have been enhanced. But this suggestion ignores the point agreed to by seven justices (all but Stevens and Ginsburg): that the frenetic recount under way in Florida violated constitutional norms and would not have been allowed to stand if completed.

The Court's majority found the disparate treatment inherent in the counting of ballots in the manual recount ordered by the Florida Supreme Court's fractured decision "inconsistent with the minimum procedures necessary" to satisfy "rudimentary requirements of equal protection and fundamental fairness." Without rehearsing here all the now-familiar problems with hanging, dimpled, and scratched chads, the Court took cognizance of the varying standards for discerning voter intent from county to county and from table to table within counties, the changing standards within counties, the inclusion of partial recounts in some counties but not others, and the failure to include overvotes as well as undervotes in the recount.

The majority's recitation in the per curiam opinion of what had transpired in one county illustrated how far the process had gone awry: "Palm Beach County, for example, began the process with a 1990 guideline which precluded counting completely attached chads, switched to a rule that considered a vote to be legal if any light could be seen through a chad, changed back to the 1990 rule, and then abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal."

Justice David Souter agreed the vote recounting "differences appear wholly arbitrary." Justice Stephen Breyer declared that "the use of different standards could favor one or the other of the candidates" in a way that violates "basic principles of fairness." While both of these justices would have favored a remedy for violation of the constitutional norms other than halting further manual recounts, the fact that seven justices determined that the manual vote recounting was arbitrary and fundamentally unfair gives the Court's action legitimacy.

It may well be a close question, at least as a prudential matter, whether the Supreme Court should have intervened at all. Justices Souter and Breyer made a plausible case that ultimately Congress, not the Court, should have resolved the dispute (although I am quite sure that many of those who most loudly decry the Court's intervention would have disparaged the legitimacy of the election if decided by Congress). But when the Court did intervene, it did so on ground on which the Court stands most firmly in terms of its ability to maintain the confidence and respect of the public-that of ensuring fair process and nonarbitrariness.

Even on a matter as subject to passion as counting votes in a presidential election, a mandate for fair process is ground on which the public is most likely to appreciate the judiciary's role, to use Justice Stevens' phrase, as the "impartial guardian of the rule of law." In his book The Morality of Consent , noted constitutional law scholar Alexander Bickel argued that "the highest morality almost always is the morality of process." Indeed, it is only when courts stray too far from enforcing process norms into what many view as substantive lawmaking that they put at risk Hamilton's (and Bickel's) characterization of the judiciary as "the least dangerous branch."

Montesquieu's legendary understatement notwithstanding, the power of the judiciary, and especially of the Supreme Court, certainly no longer is "next to nothing" in relation to that of the other branches. This is so because, by and large, the federal judiciary has come to enjoy the public confidence and respect that John Jay found so lacking in his own time.

For the well-being of a country committed to living under the rule of law, my New Year's wish is that this always remains the case. My New Year's prediction is that, as emotions cool, the Supreme Court's decision will not diminish such public confidence and respect. Because even though ordinary Americans do not speak the language of lawyers, they intuitively understand that what courts do best in our constitutional culture is ensure adherence to notions of fundamental fairness and equal treatment that are at the heart of Bush v. Gore .

Randolph J. May is a senior fellow and director of communications policy studies at the Progress & Freedom Foundation in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of the foundation.

© 2001 Legal Times. All rights reserved. This article is reprinted with permission from Legal Times.