Bush v. Gore BUSH v. GORE The Question of Legitimacy edited by bruce ackerman yale university press new haven & london Copyright ∫ 2002 by Yale University. All rights reserved. This book may not be reproduced, in whole or in part, including illustrations, in any form (beyond that copying permitted by Sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), without written permission from the publishers. Designed by Nancy Ovedovitz and set in Scala type by Keystone Typesetting, Inc., Orwigsburg, Pennsylvania. Printed in the United States of America by Sheridan Books, Ann Arbor, Michigan. Library of Congress Cataloging-in-Publication Data Bush v. Gore : the question of legitimacy / edited by Bruce Ackerman. p. cm. Includes bibliographical references and index. isbn 0-300-09379-9 (cloth : alk. paper) isbn 0-300-09380-2 (paper : alk. paper) 1. Bush, George W. (George Walker), 1946—Trials, litigation, etc. 2. Gore, Albert, 1948—Trials, litigation, etc. 3. Presidents—United States—Election— 2000. 4. Contested elections—Florida. I. Title: Bush versus Gore. II. Ackerman, Bruce A. kf5074.2.b874 2002 342.73%075—dc21 2002000918 A catalogue record for this book is available from the British Library. The paper in this book meets the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources. 10 9 8 7 6 5 4 3 2 1 Contents Introduction: The Question of Legitimacy bruce ackerman vii the rule of law? PART ONE 1 An Unreasonable Reaction to a Reasonable Decision charles fried 3 2 Not as Bad as Plessy. Worse. jed rubenfeld 20 3 eroG .v hsuB: Through the Looking Glass laurence h. tribe 39 4 In Partial (but not Partisan) Praise of Principle guido calabresi 67 5 The Fallibility of Reason owen fiss 84 6 Sustaining the Premise of Legality: Learning to Live with Bush v. Gore robert post 96 7 Can the Rule of Law Survive Bush v. Gore? margaret jane radin 110 vi contents political questions PART TWO 8 A Political Question steven g. calabresi 129 9 Political Questions and the Hazards of Pragmatism jeffrey rosen 145 10 The Conservatism in Bush v. Gore mark tushnet 163 11 Does the Constitution Enact the Republican Party Platform? Beyond Bush v. Gore cass r. sunstein 177 12 O√ Balance bruce ackerman 192 13 Legitimacy and the 2000 Election jack m. balkin 210 Contributors 229 Index 231 bruce ackerman Introduction: The Question of Legitimacy Talk of constitutional crisis conjures up some great disturbance in the larger society—revolution or war, economic depression or mas- sive movement for social change. The mighty social forces unleashed by these events disrupt existing constitutional arrangements and threaten to overwhelm political and legal elites. The question, simply put, is whether existing leaders can channel these forces into con- structive forms, or whether the Constitution will be fractured beyond recognition. But there is another kind of crisis—generated not by social pressure but by the machinery of government itself. Some part of the machine misfires, then another, then another. The general public is bewil- dered, the elites are uncertain about the next step. Time marches on—decisions must be made, they are made, and then? Anxious reappraisal, followed slowly by a consensus on how the sys- tem performed. If the collective judgment is positive, the participants Many thanks are due to Dean Tony Kronman, of Yale Law School, who pro- vided financial support for the talkfest as part of the university’s celebration of its tercentenary. vii viii introduction celebrate the glories of their constitutional inheritance and look for- ward confidently to future challenges. But if it is negative, a gnawing sense of illegitimacy eats away at the fabric of mutual confidence. Consider Watergate. No great social force generated this crisis. Nothing compelled Richard Nixon to bug the headquarters of the Democratic National Committee. But he did, and the question was how the rest of the system would respond. Each step was controversial —from the congressional hearings to the discharge of Special Pros- ecutor Archibald Cox to the Supreme Court’s decision to the presi- dent’s resignation to his pardon by President Ford. Yet after the smoke cleared, and after much debate, a clear consensus emerged: the sys- tem worked, not perfectly, but well enough. Will we be saying the same thing about Bush v. Gore? Or will the decision cast a darkening cloud over the Bush presidency and the Supreme Court of the United States? The answer begins, but does not end, with the legal merits of the majority’s decision. Part One of this book, ‘‘The Rule of Law?,’’ opens with a spirited pair of essays by Charles Fried and Jed Rubenfeld. A professor at Harvard Law School, Fried confronts the decision on the basis of a distinguished career that includes service as solicitor gen- eral under Ronald Reagan and as associate justice of the Massachu- setts Supreme Court. He argues that the Court’s decision was entirely reasonable—it is the harsh academic reception that is extreme. Pro- fessor Rubenfeld of Yale Law School then enters the field with a pow- erful essay that exemplifies the emerging critique. Both writers aim for a large audience and set the tone for the book. The contributors refuse to hide behind mind-numbing legal minutia, presenting the key questions in straightforward terms. You don’t have to go to law school to get to the heart of their dispute. It is enough to be a thoughtful American. This initial exchange is followed by two writers whose special ex- perience deepens the debate. Professor Laurence Tribe’s role as Al introduction ix Gore’s counsel before the Supreme Court is part of a unique career as the leading scholar-advocate of his generation. Judge Guido Cala- bresi, formerly dean of Yale Law School, is the most distinguished academic appointed by President Clinton to the United States Court of Appeals. Tribe describes how television transformed the Court’s perceptions of the stakes. Intervening without an adequate legal record, the jus- tices allowed TV images to create a false sense of crisis and to dis- tort their understanding of the constitutional requirements of equal protection. Tribe places the Court’s decision in a real-world context, re- vealing the bankruptcy of its media-driven formulations. No less trou- bling is the Court’s imperative need for order and its disdain for the political branches. He argues that the Court was wrong to assume the decisive role the Constitution assigns to Congress in electoral disputes and concludes with the fear that the decision may become ‘‘our judicial Vietnam’’—undermining confidence in the judiciary even when major interventions are actually required by constitutional principle. Judge Guido Calabresi begins with a sketch of three possible opin- ions that might have resolved Bush v. Gore in a principled way—one favoring Bush, one Gore, and one indeterminate at the time the Su- preme Court decided the case. The trouble is that the Court failed to take any of these models seriously, awarding the presidency without committing itself to any coherent constitutional principle. Calabresi is no absolutist, and concedes that unprincipled decision making may sometimes be acceptable, even wise. But the problem confronting the Court did not remotely authorize such a breach with established judi- cial norms. It is only by committing themselves even more firmly to legal principle that federal judges may ultimately undo the harm caused by the aberrational character of the Supreme Court’s decision. We are reaching a crucial question: Is Bush v. Gore just another controversial decision, or does it represent a decisive breach with the rule of law? Owen Fiss of Yale Law School vigorously rejects the more disturbing answer. On his view, the case is no di√erent from many