Bush v. Gore: A Legal Realist's Assessment
From a legal realist's point of view, the U.S. Supreme Court's decision in Bush v. Gore should come as no surprise -- the decision simply continued the conservative backlash on equal protection clause (EPC) jurisprudence.
The EPC jurisprudence started with using EPC as a tool for helping the underprivileged, especially the underfranchised. But in the past few years, we have seen a reversing trend: while the EPC used to back racial minorities' struggle in grabbing legislative seats from incumbents, it is now utilized to maintain certain district shapes that apparently favor the GOP; while EPC used to break segregations in Southern schools, it is now invoked to strike down affirmative action policies in college admission. Given this trend, it is no surprise that the case of Bush v. Gore came out as it did.
It is a good idea to remember the purpose of separation of power in a liberal democratic system. The legislature, in a democracy, typically follows majority rule. The courts are meant to guard the constitution in which protection of minority in a majority-ruling democracy is enshrined as a paramount principle. Otherwise, the majority can always quash the minority's voice -- this is called the "tyranny of the majority." To me, the undervotes in Florida were prime candidates crying out for judicial and constitutional protection. These are people who, unfamiliar or confused over the voting procedure, due to language barrier, poor educational background or health problems, voted not as they intended to. Shouldn't these people be the ones that EPC seeks out to protect? Yes, many of them tend to have lower income, probably are recent immigrants and probably are on Medicare or other welfare assistance. And, as you may have guessed it, they tend to be Democrats. Letting the legislative and executive branches of the Florida government get away with all kinds of red tapes and ironclad machine-reading "one-corner-chad" rules is letting the traditional majority discount the underfranchised.
Now, if I were a computer, I would point out the flip side of the above argument: Gore actually won the national popular vote -- the majority was behind him, albeit by a slim margin. In this case, the Electoral College system plus this Supreme Court ruling, I think, did exactly what Constitution says: fend off the mob! Well, this argument has some merit only when the underfranchised became the majority in number. We can argue whether it is sheer number or wealth that constitutes majority. And we should always keep in mind that the Constitution is an outcome of compromises. Both sides can find ammunitions in it.
This is why accusing the U.S. Supreme Court of exercising undue judicial activism is not going to be a winning argument. One may well argue that the U.S. Supreme Court rectified the judicial activism of the Florida Supreme Court. Indeed, from now on, nobody has to "actively" recount and determine the disputed ballots any more.
(The author is an attorney at the Boston law firm of Testa, Hurwitz & Thibeault, LLP.)
