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March 2001

People do not want to believe that Bush v. Gore is actually the worst Supreme Court decision in our history because we want that title to belong for all time to the infamous Dred Scott decision (1857), which found that African-Americans could not be "citizens"within the meaning of the diversity jurisdiction clause of the Constitution. But Dred Scott was, by comparison, a brilliantly reasoned and logically coherent decision. It was a masterpiece of originalism, legal analysis based on the Framers' intent. It demonstrated to the satisfaction of anyone then or today that the original Constitution was indeed a white man's compact and that it was never contemplated by the Framers that slaves or the descendants thereof could avail themselves of the federal courts. (It would take the Civil War and Reconstruction to destroy the white supremacist Constitution.) Of course, original intent is not the only theory of constitutional interpretation, much less the controlling one, but at least the Dred Scott decision had a coherent theory rooted in the history and text of the Constitution.

By contrast, Bush v. Gore's Emancipation Proclamation for pregnant chads mocks legal reasoning and represents an affront to the rule of law. It has no grounding in originalism or textualism, the watchwords of the conservatives. It constitutes an assault on federalism and the separation of powers, both of which conservatives pretend to love. And it makes a mockery of the phrase "judicial restraint."In a slapdash job of constitutional interpretation, the conservatives upended and ravaged four foundational relationships in our constitutional system. It usurped the role of the Florida Supreme Court in interpreting state law. It usurped the role of the American people by halting the counting of ballots in a presidential election and effectively choosing the president for them. It usurped Congress' powers to accept or reject the states' electoral college votes. And it reversed the proper distribution of powers in federal government by having Supreme Court justices appoint the president rather than vice versa.

To accomplish these feats, the court had to trample its own restrictive rules about who can even be heard in federal court. In equal protection cases, certainly those involving racial minorities, the Rehnquist Court has been adamant that plaintiffs seeking a hearing may not assert the rights of others or abstract principles of fairness but must establish standing by showing their own concrete personal injury at the hands of the government. Thus, in Allen v. Wright (1984), the court denied standing to African-American parents who wanted to compel the IRS to enforce the law by withdrawing tax exemptions from private schools that discriminate on the basis of race. Justice O'Connor stated that citizens have no general right to make government comply with the law and found that the African-American plaintiffs were not personally injured by the white flight allegedly facilitated by the IRS.

But in Bush v. Gore, the Rehnquist majority did not even ask, much less explain, how Bush was personally injured by the hypothetical possibility that anonymous third-party citizens might have their ballots counted differently in Florida's presidential election. Nor, for that matter, did the justices ask how stopping the vote counting would redress those third-party injuries.

Like a rampaging elephant in a polling booth, the court overrode not only the glaring standing problem but also the obstacles of federalism and the "political question doctrine."Article II leaves it to "Each State"to appoint its electors, and the 12th Amendment provides that the "President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted."The court should simply have deferred to the states and Congress. That is almost certainly what it would have done if Al Gore had been leading in Florida and had asked the court to stop an order of the Florida Supreme Court for a statewide manual recount of undercounted ballots upon a petition by George W. Bush.

Even if we charitably assume that the court would have considered the merits of an equal protection claim in a hypothetical Gore v. Bush case, there can be no doubt that the conservative majority would have dismissed the argument, a theory so weak that the court itself refused to certify it for consideration when Bush raised it on Nov. 22, 2000. Only later when it realized this was the only available hook to hang its hat on did the majority find new life in this approach.

Even if one suspends disbelief and imagines that the Rehnquist Court, in the hypothetical Gore v. Bush case, would have determined that there was an equal protection violation, it is impossible to see how the court ever would have arrived at the remedy of halting the recount. If voters are threatened with constitutional injury by potentially not having their votes count when similarly situated votes in other counties are being counted, that injury becomes certain and undeniable if the court orders that they not be counted. How are the rights of pregnant- chad voters vindicated by judicial relief mandating their categorical disappearance in the election?

This paradox reflects the fact that there were no injured plaintiffs as parties in Bush v. Gore available to complain about being disenfranchised by the court. Rather, the plaintiff was a candidate desperately looking for ways to prevent the counting of votes. The tragedy here is that the majority not only ordered actual disenfranchisement as the remedy for potential disenfranchisement but actually used voting rights rhetoric to nullify the right to vote. If there was an equal protection violation in Bush v. Gore, it is found not in anything Florida did, but in the very relief that the court ordered.

Still, the decision was not out of character for the Rehnquist Court. Far from it. For at least a decade, the court has been promoting a deeply conservative and racialized ideology of electoral politics that finally collapsed into bare-knuckled Republican partisanship in Bush v. Gore.

The Rehnquist Court made clear in 1993 that it intended to read equal protection in politics through an ideological lens. Writing for the majority in Shaw v. Reno, Justice O'Connor launched the court on its path of striking down so-called "bizarrely drawn"majority-African American and majority-Hispanic congressional districts created by states under the Voting Rights Act. Like Bush v. Gore, the court's decision in Shaw relied on a stunning abandonment of all prior equal protection jurisprudence to define a very strange new right for a powerful social group---white people---facing nothing we might recognize as discrimination. In Shaw and its progeny, the court essentially articulated a presumptive new right under equal protection for white citizens to be part of racial majorities in federal, state, and local legislative districts.

This double standard, which masquerades as "color blindness,"requires tremendous judicial interference with the political processes of the states to prevent the creation of aesthetically displeasing majority-minority districts. Like Bush v. Gore, the Shaw doctrine also betrays original understanding jurisprudence because it has been an article of faith with conservatives for decades that the intent of the 14th Amendment had nothing to do with districting practices, since the whole purpose of giving Congress enforcement powers under the 14th Amendment was to empower it to take remedial action against white supremacy.

In Shaw, the court discarded conventional modes of constitutional analysis in favor of a racially charged conservative political correctness. The white law professors at Duke, who brought the Shaw litigation after redistricting turned them into a racial minority in their House district, actually suffered no injury from the alleged wrong of "racial gerrymandering."They retained a perfect right to vote, to run for office, to campaign, and to raise money. They enjoyed all the same rights (and burdens) that African-Americans have as minorities in majority-white legislative districts.

Yet in Shaw, the court found that the plaintiffs stated an actionable claim by objecting to "redistricting legislation that is so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting, without regard for traditional districting principles and without sufficiently compelling justification."A majority African-American district with an odd-looking perimeter "bears an uncomfortable resemblance to political apartheid,"Justice O'Connor observed. In Holder v. Hall, Justice Thomas upped the ante and described the creation of majority African-American districts as "an enterprise of segregating the races into political homelands that amounts, in truth, to nothing short of Œpolitical apartheid.'"

What is so amazing about this rhetoric is that "segregation"and "apartheid"in the hands of Rehnquist, Thomas, and the gang have nothing in common with society's understanding of these concepts. Indeed, the political "segregation"allegedly caused by majority-African American districts is the precise opposite of the forms of segregation condemned in Brown v. Board of Education in 1954. The separate-but-equal schools deemed unlawful in Brown were 100 percent white and 100 percent African-American. The districts targeted for destruction in Shaw were the most integrated districts in the history of North Carolina: The First District was 53.4 percent African-American, 45.5 percent white, and the Twelfth was 53.3 percent African-American and 45.2 percent white.

Moreover, since racial integration is the conservatives' overriding goal, it should have moved them that the existence of these districts meant that, for the first time since Reconstruction, there would be African Americans in the state's delegation to the U.S. House. The new majority-minority districts created in the wake of the 1990 census meant that the number of minorities in Congress increased by 18. Meanwhile, a majority---57 percent---of North Carolina's African-Americans continued to live in majority-white districts. And even after the creation of the two majority-African American districts to remedy a history of racial gerrymandering in the state, white majorities and white congressmen continued to hold 10 out of 12, or 83 percent, of the state's U.S. House seats even though whites only constituted 79 percent of the state's population.

Shaw has transplanted a most astounding racial double standard to the very heart of equal protection. Under the Shaw rule, whites have a presumptive right not to be part of majority African-American or Hispanic districts that have an odd shape, although African American and Hispanics have no such right against belonging to oddly shaped majority-white districts. The Constitution requires no standards of compactness, contiguity, geometric form, or aesthetically pleasing appearance in legislative districts. (Who has ever seen a square or triangular congressional district?) In general now, whenever legislatures deliberately create majority-minority districts to remedy past racial vote dilution, they violate the Constitution, but if they deliberately create majority-white districts to entrench white incumbents, they have done nothing wrong.

Unlike minority plaintiffs challenging the snob zoning of housing, suspicious road closings, racially uneven use of the death penalty, or police recruitment testing that disproportionately fails minorities, white plaintiffs in these cases of abstract symbolic harm do not have to show personal injury and do not have to show that there was any governmental purpose to discriminate against them.

Meantime, the court has cavalierly sent packing actually disenfranchised populations seeking its help. Everyone knows that the conservatives in Bush v. Gore stated there is no constitutional right for the people to vote for president beyond what the states are willing to bestow upon them. Less well-known is that, just two months prior to the court's decision in Bush v. Gore, the court dismissed an appeal in Alexander v. Daley, a voting-rights case brought by the District of Columbia Corporation Counsel and Covington and Burling on behalf of more than a half-million American citizens who live in the capital city and have no voting representation in the U.S. House or Senate.

The plaintiffs lost below in a 2-1 panel decision in the U.S. District Court, but won a splendid dissent by the senior judge on the panel, Louis Oberdorfer, who found that the denial of representation in Congress violated equal protection. While the Bush majority granted certiorari on George W. Bush's petition over the weekend and heard oral arguments 48 hours later, the same justices categorically refused to hear the arguments of Washingtonians, who have been waiting for a hearing on their disenfranchisement for 200 years.

Supreme Court Nominations

After Bush v. Gore, there is no use in anyone pretending the selection of judges is not a political event, indeed a partisan one, or that it has ever been anything else. Supreme Court justices have been political actors from the beginning. The first chief justice, John Jay, actually ran for governor twice in New York while he was on the bench, winning the second time and resigning from the court. No one should have been shocked at news reports at the time Bush v. Gore was argued that Justice Scalia's son was working as a lawyer for the Republicans' law firm, or that Justice Clarence Thomas' wife was collecting résumés for the prospective Bush administration.

Consequently, Democrats must assert the co-equal role of the Senate to advise and consent. The democratic genius of a system of separated powers is that when one branch is clogged and hostile to the claims of significant parts of the population, access and redress are ordinarily available in another branch. For this reason, the Senate must give no presumptive weight to the Bush administration's judicial selections. Senators as a group represent a fuller picture of national political opinion than a president, certainly this one. Whereas a president constructs an electoral college majority out of victories in certain states, senators represent majorities (or pluralities) of voters in every single state. Moreover, because of their staggered elections, senators provide a kind of temporally extended representation of the people's will rather than the president's expression of part of the nation's mood on a single day once every four years.

All of which is to say, when President George W. Bush begins to fill the 63 vacancies in the federal judiciary in 2001 and floats names for Supreme Court justices, he should remember the political context of his victory. Although he eked out a dubious four-vote majority in the electoral college after eking out a dubious one-vote majority on the Supreme Court, he lost the national election by more than a half-million votes. Historically, presidents who achieved office without being truly elected---Bush almost certainly falls into this category---have seen more than 50 percent of their Supreme Court nominees rejected.

If President Bush has no mandate to pack the courts with more zealots, Senate Democrats do have a strong mandate to stop the court's slide from untenable conservative ideology to blatant Republican partisanship. The Democrats must not conduct business as usual, the kind they gave us with the unanimous 1986 confirmation of Antonin Scalia. If Democrats take the path of least resistance and confirm right-wing corporate lawyers and platitude-spouting bureaucrats like Clarence Thomas promoting the Federalist Society agenda, there will be hell to pay for the Bill of Rights and public welfare generally. Indeed, it has been the Democrats' wimpiness in challenging Republican judicial nominees that helped to create the five justice Bush majority.

But, most importantly, the project of constitutional politics cannot be reserved for Supreme Court nominations. Every district court judge has tremendous power over people's lives and the Democrats should take federal appeals court nominations as seriously as they do Supreme Court nominations. The specific assault on political liberty and electoral democracy follows logically from a society-wide crackdown on civil rights and liberties. From Zero Tolerance in the high schools to the War on Drugs to shrinking privacy to racial profiling, we need a movement to restore the meaning of our Bill of Rights in the institutions of society. It is time for the people to take the Constitution back from the court.