Ten Years After Bush v. Gore

Pamela S. Karlan in Boston Review:

Ten years ago the Supreme Court stepped in to decide the presidential election. The Court halted Florida’s recount and announced that the state’s method of reviewing ballots violated the equal protection clause of the Fourteenth Amendment. Although the Justices had found a constitutional violation, they weren’t interested—as the Court’s unsigned 2000 opinion in Bush v. Gore made clear—in vindicating equality more broadly. Their decision, they wrote, “is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

The Court’s interest in leveling the political playing field waned as quickly as it waxed. Since Bush v. Gore, the Court has consistently refused opportunities to make the electoral process fairer. Consider gerrymandering: nothing makes ballots more worthless than having the election results foreordained by sitting politicians’ artful jiggering of the district lines. Yet the Supreme Court has refused to do anything about the increasingly aggressive and sophisticated means by which officeholders pick their constituents rather than the other way around. Moreover, the Court has turned a purported concern with voter chicanery into a green light for draconian voter-identification laws, despite virtually no evidence of voting fraud perpetrated through impersonation of registered voters at the polls. The Court also has responded to the Voting Rights Act—Congress’s most notable and successful attempt to promote equality within the political process—by adopting the narrowest possible construction of the Act and expressing skepticism about its constitutionality. Most notoriously, the Court has dismissed the very idea that equalizing chances for political influence is a legitimate value when it comes to campaign-finance regulation.

But Bush v. Gore casts a shadow far beyond the Court’s election-law docket. At the time of the decision, many observers—including Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer in dissent—warned that the Court might lose the nation’s confidence in its role as an impartial guardian of the law. That didn’t happen, but the Court apparently did gain a disturbing degree of confidence in itself. Having decided in 2000 that Congress could not be trusted to have the final word in the presidential election—even though the Twelfth Amendment establishes Congress, not the Supreme Court, as the ultimate arbiter—a number of justices have been making a habit of expressing distrust for Congress in other areas.