Jesse H. Choper, Why the Supreme Court Should Not Have Decided the Presidential Election of 2000, 18 Const. Comment. 335 (2001)
This short article briefly discusses the two substantive issues in Bush v. Gore. Its major thesis, however, is that the proper role of judicial review dictates the conclusion that the Court's adjudication was unnecessary and unwise, creating a popular perception of partisanship by the Judicial Branch that carries the threat of diminishing the Court's public trust and confidence and endangering its overall effectiveness. The process for contesting the vote was working, to the extent litigation 'works.' The problem was not with the process, imperfect as it was, but that the election produced a statistical dead heat. Although the litigation in the state courts was appropriate and authorized by federal law, Bush v. Gore presented a 'political' question for the federal courts, from the perspectives of both public policy and constitutional doctrine. The ultimate issue in Bush v. Gore - who shall be elected president of the United States - is the most 'political' of all matters in our nation. As a matter of policy, our system presumes that political issues should be resolved by political means, so as not to embroil the Court in partisan political maneuverings beyond its institutional capacity and role. The legal issue in Bush v. Gore also qualifies as a 'political question' under a more formal doctrinal analysis by which, pursuant to separation of powers principles, the Court defers to the political branches for final determination of certain constitutional issues. Both the Twelfth Amendment and the Electoral Count Act of 1887 relegate the issue of disputes concerning electors to the resolution of Congress and, although authorizing state courts to be involved in this matter, make no mention of the role of the Supreme Court. The Supreme Court's ruling produced the most disappointing, and potentially destructive, outcome: a 5-4 division, creating the reasonable perception of partisanship, halting the recount, and making George W. Bush the president. The basis on which most of the general public understood the decision - that the five members of the Court who quite regularly make up its conservative majority, and who ordinarily favor states' rights, voted to end the recount, while the four usual members of its liberal wing, who usually are not deferential to state authority, wished to continue the process - makes it easy to understand why allegations of political bias erupted, especially because of the President's power to appoint new Justices and the reports that several conservative incumbents desired to retire. Nonetheless, there are reasons to believe that the Court's credibility and the public's respect for it may not suffer more than temporarily, distinguishing Bush v. Gore from other rulings that have wounded the Court's prestige. First, a substantial number of people believed that the nation was headed toward some form of 'constitutional crisis' that the Supreme Court's intervention was necessary to avoid. As a consequence, the Court's vulnerability to attack in such highly disputed matters as segregation, school prayer, and abortion, where all those on the 'losing' side deeply resented the Justices' 'wrong' decision, is greatly mitigated when at least some of the 'losers' see some virtue in the Court's action. Second, unlike prior controversial cases that have had a profound impact on the Court's standing, the matter of Bush v. Gore is over and will not reopen in the Judicial Branch. The decision is important, not because it resolved a substantive question involving Florida's selection of presidential electors, or generated some enduring doctrine or principle likely to spark an ongoing democratic debate. Rather, it was momentous because it resulted in the election of President George W. Bush, a matter virtually impossible ever to arise in the courts again.