Bush v. Gore and Article II: Pressured Judgment Makes Dubious Law

The U.S. Supreme Court's Dec.12 Bush v. Gore decision in the Florida election dispute will be talked about and picked apart for decades. Needless to say, one could examine many aspects of the momentous ruling. The wisdom of the Court's decision to take the case at all by granting cert., the legitimacy of the Court's issuance of the stay on Dec. 9 that halted the manual recounting in various Florida counties, as well as the coherence and plausibility of the Court majority's equal protection rationale on the merits, have already been discussed at length in the popular press and will, we are sure, occupy many law review pages in the coming months.

This brief essay touches on those themes, but also explores another set of legal arguments that were made during the course of the Supreme Court litigation - the arguments advanced by the Bush team that, under Article II of the Constitution, the Florida courts were violating federal constitutional law by depriving the Florida Legislature of the power the Constitution confers to it. These were the arguments embraced explicitly by Chief Justice William Rehnquist's concurrence, in which he was joined by Justices Scalia and Thomas. And these were the arguments that, as a practical matter, ultimately led the Court to terminate the Florida courts' attempts to oversee manual recounts called for under Florida law. In the pages that follow, we will try to explain the centrality of President Bush's Article II arguments in the Supreme Court litigation(s) and suggest that the three (or more) justices who bought into those arguments were, at the very least, guilty of hasty and careless constitutional decision-making.