But This Defense of Lawless Partisanship Is Highly Nonpartisan!

“The five justices in the Bush v. Gore majority are thus the only judges involved in this election dispute who fall uniquely within the category that is most indicative of partisan justice: they made a decision that was consistent with their political preferences but inconsistent with precedent and inconsistent with what would have been predicted given their views in other cases. Moreover, their decision received no support from any judge with presumably different partisan loyalties.”

–Howard Gillman, The Votes That Counted (p.189.)

Al Gore apparently made some quips about the abject lawlessness of the 2000 Supreme Court on Leno. Ann Althouse, one of a tiny handful of legal scholars hackish enough to defend the indefensible with an article* that, as this excerpt suggests, is (with the exception of a good but not terribly important refutation of the claim that the Court should have denied the case under the “political questions” doctrine) a compendium of strawmen, evasions, and non-sequiturs, returns to the subject of Bush v. Gore. And…well, the term “Orwellian” seems grossly inadequate:

But, in any case, Scalia’s position in Bush v. Gore worked to extract judges from the election, as it pushed back the Florida Supreme Court, which thought it had the expertise to run things.

No really–she thinks that a case where a bare majority of the Supreme Court ended a recount being conducted under state law with an argument that was strikingly inconsistent with the previous doctrinal commitments of the justices, asserted that this newly-minted “principle” would not apply to subsequent cases, and then refused to apply the “principle” logically within the case itself (leaving in places recount results that if you–unlike the majority–take the alleged principle of the case seriously was just as illegal as the one the Court pre-emptively rejected) is…an example of judicial restraint! We’ve been through this before, but one more time:

• It wasn’t the Florida court which “which thought it had the expertise to run things.” Even leaving aside the fact that in our system the courts have the authority to apply statutes, resolve ambiguities, etc., it was the Florida legislature which thought the court had the relevant expertise. Section 102.168(8) of the election contest statute reads as follows: “The circuit judge to whom the contest is presented may fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances.” [my emphasis] To argue that the Florida courts were arrogantly arrogating power that the legislature explicitly gave to them is beyond ludicrous. No other institution or body, consistent with Florida law, could have deployed their “expertise” to resolve the contested election. I am very skeptical that Rehnquist’s Article II argument is ever valid as long as Marbury remains good law, but if it’s ever applicable it certainly can’t be in a case where the legislature explicitly gives the courts wide discretion to resolve disputes with little in the way of direction or constraint.
• Underlying Althouse’s argument is her assumption that (as she puts it in her article) that the Florida court gave a “strained, result-oriented interpretation” of Florida law. First of all, it takes more than a “strained” interpretation for it to be legitimate for the Supreme Court to override a state interpretation of state law in a case that otherwise didn’t present a remotely serious federal question (and I have no idea what a straightforward application of Florida’s ambiguous, poorly constructed election statutes would look like.) But, more to the point, her assertion that the Florida Court was acting in a “results-oriented” manner is–to the extent that it has any non-tautological meaning–flatly erroneous. The court applied the same legal standard consistently although Gore (allegedly their favored litigant) lost 3 out of 5 cases. A more formalist statutory construction–which would have, for example, led to the exclusion of technically illegal military ballots that ended up being counted–may well have been more favorable to Gore if it were applied consistently.
• And, finally, such defenses of Bush v. Gore seem to be premised on a “two wrongs make a right” theory of constitutional law. I would be interested in some, ah, reasoned elaboration of the merits of this theory. (Even pragmatically, the defense fails unless you start with the assumption–as Scalia implicitly did in his egregious decision to stay the recount–that the presidency rightly belonged to Bush.) But to proceed from this premise to Althouse’s claim that Bush v. Gore was about judicial modesty…I think this is self-refuting.

As the fact that defenses of his conduct would have to become considerably more coherent to rise to the level of being specious suggests, Bush v. Gore will be a permanent disgrace on Antonin Scalia’s record–Gore’s mild ribbing is going to look tame. And rightly so.

*See Ann Althouse, “THE AUTHORITATIVE LAWSAYING POWER OF THE STATE SUPREME COURT AND THE UNITED STATES SUPREME COURT: CONFLICTS OF JUDICIAL ORTHODOXY IN THE BUSH-GORE LITIGATION,” 61 Maryland Law Review (2002.)