Our Divided Political Heart (22 page)

These considerations loomed large in the minds of many of Gore’s supporters, but they were not even the most troublesome aspect of controversy. And in and of itself, the fact that the five most conservative appointees on the Court ruled in favor of the Republican presidential candidate did not explain the long-term damage the decision did to the Court. Truly astonishing was the fact that the five justices who chose to intrude in Florida’s election process were the same ones who had always claimed to be champions of the rights of states and foes of “judicial activism” and “judicial overreach.”

Worse, to reach the result most convenient for the conservative candidate, the conservative justices invoked liberal principles they had previously disdained. In general, conservative justices had long been wary of what they saw as the overuse by liberals of the equal protection doctrine to
extend rights to minorities and women. Yet it was that very commitment to equal protection that the Court invoked to protect Bush from defeat. Weirdly, the doctrine was used to stop a recount whose purpose was to move
closer
toward equal protection of all those voters—many of them poor and members of minority groups—who might have lost their ballots because of unreliable voting equipment. And conservative justices who had long advocated for states’ rights felt perfectly free to cast aside the decision of a
state
court acting on a
state
matter and impose their will by fiat. States’ rights were fine unless they led to an inconvenient political result.

To make the decision as bitter as possible for its critics, the majority that had abruptly stopped the recounting of ballots on the theory that Al Gore would suffer
no “irreparable harm”
from a delay said just a few days later that it was now too late to have a recount that “
comports with minimal constitutional standards
,” directly contradicting what they had said in the first place.

Never in history has a Court made as clear as this one did that it didn’t really believe in the principles it was using to get to the result it wanted. “
Our consideration is limited to the present circumstances
,” the justices in the majority wrote, “for the problem of equal protection in election processes generally presents many complexities.” Such complexities didn’t bother them in this particular case, of course, but they were telling all future courts never to apply their reasoning in
Bush v. Gore
to any other case. It was a reasoning process designed to produce one outcome, one time.

One theme of this book has been how contemporary conservatism has shed many of the doctrines and principles that have allowed it to contribute so much to the inherent balance of American political life. The resort to brute judicial force to settle the 2000 election seemed decidedly unconservative. It was, after all, Robert Nisbet who offered the classic conservative distinction between “power” and “authority.” Power, he noted, was based upon force.
Authority is “based ultimately upon the consent of those under it
.” In a democracy, we recognize the authority even of leaders with whom we disagree because we accept the legitimacy of the process that got them there. The Supreme Court ruling gave Bush power without the authority that would have come from legitimacy. This would only aggravate the political problems he faced once the feelings of national unity bred by
the terrorist attacks of September 11, 2001, faded and the war in Iraq went sour.

Understanding the radicalism of
Bush v. Gore
and the way the Court had mimicked the very “results-oriented” jurisprudence that conservatives had long condemned is essential to understanding the deep polarization of recent years and the rise of an increasingly embattled and angry liberalism. There was lasting fury over what liberals could only see as the ruthless use of judicial power—and also over the highly disciplined and often vicious attacks on Gore for the simple act of seeking what candidates in close races had always demanded: a recount.

But a decade on, and in the wake of the Tea Party rebellion,
Bush v. Gore
is also illustrative of how the invocation of the Constitution by conservatives had become a routine way of achieving their political goals. It involved harking back to the Constitution as it was written in 1787, downplaying the impact of the Civil War and Progressive Era amendments, and ignoring the steady democratization of the country in the intervening two and a quarter centuries.

Recall that when the recount of the ballots in Florida threatened to put Gore in the lead—and this seemed a strong possibility before the Supreme Court abruptly halted the recount—many conservatives insisted that the Florida legislature, under Republican control, should ignore the actual count of the popular vote in the state and simply impose a slate of Bush electors. This was defended as “the constitutional option,” since the Constitution vested in state legislatures the right to choose presidential electors as they wished. Writing in the
New York Times
in late November 2000, William Kristol, the conservative editor and commentator, made the case for going around the vote count:

The Florida Legislature has to be ready to assert its own constitutional prerogative
against the Florida courts’ intervention in the electoral process. The United States Constitution provides that presidential electors may be appointed in such manner as the state legislatures may direct.

On or before Dec. 12, the Florida legislature may have to choose to ratify the slate of electors certified by the secretary of
state against the wishes of the Florida Supreme Court. That decision would then have to be upheld by the United States Congress. This would be a constitutional crisis, to be sure—but forcing such a “crisis” is preferable to supine yielding to an imperial judiciary.

Put aside that conservatives were relentlessly accusing Al Gore at the time of selfishly provoking a “crisis” simply by demanding a recount. Creating a “crisis,” it seemed, was acceptable as long as it was provoked on behalf of George W. Bush. But the key word here is “Constitution,” used as a vehicle for moving the election away from the counting of ballots, that is to say, away from democracy.

During oral arguments, Justice Antonin Scalia made clear he read the situation exactly as Kristol did. “
There’s a right of suffrage in voting for the legislature
,” he told Lawrence Tribe, Gore’s lawyer, “but Article II makes it very clear that the legislature can, itself, appoint the electors.”

John Yoo, who later became famous for his Bush administration memos on torture and his defense of rather unbridled notions of presidential power, wanted to make sure the people knew their place. “
Contrary to Democratic rhetoric
,” he asserted in the
Wall Street Journal
, “the people have no right to vote for president or even the Electoral College; that power is only delegated to them by the grace of the legislature. In appointing the electors itself, the legislature would be directly taking up its constitutional functions again.” A move away from democracy is thus recast nobly as a legislature “taking up its constitutional functions again,” as if the states had been lazy in letting the people decide who their presidential electors would be. And the Supreme Court majority vigorously asserted precisely this point in
Bush v. Gore
, stating flatly: “
The individual citizen has no federal constitutional right
to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.” It was instructive for the people to learn how circumscribed their right to choose the president really is.

Striking throughout the controversy was how the Constitution was invoked over and over as a means of reversing democratic advances that the nation had taken for granted for decades. At the time the Founders
wrote the Constitution, they imagined that all electors would be chosen by legislatures. There were many restrictions on the right to vote, including those of property. Over the years, while retaining the Founders’ framework, the nation steadily extended the right to vote to white men without property and eventually to African American men and then to women. Popular election of those who would select our president was part of this democratic advance. To step back from the idea that voters should name electors—and to step back from a fair count of Florida’s votes—was to retreat into a less democratic world, to a time when the people’s will was thought to need buffering by those, including state legislators, who claimed to know better. “Many of our original structures of government plod along unaltered to this day, though they are rooted in assumptions and biases that have been not only rejected, but in many instances forgotten,” wrote the columnist Harold Meyerson. “
Today, conservatives like Scalia and Yoo cheerfully defend
the rights of legislatures over people, but prudently decline to invoke the demophobic and aristocratic beliefs that led to the establishment of these rights.”

The legal scholar Peter Shane offered a devastating analysis of the decision that is worth citing at length because of his emphasis on “the conspicuous trajectory of our constitutional development toward more democracy” throughout our country’s history:

Never before in the history of democratic government
has an unelected judicial organ chosen the head of state by preventing the counting of votes. Such an event cuts entirely against the grain of our political history. The past 200 years have witnessed a broadening of the franchise in the United States (and throughout the world) in terms of both eligibility and applicability. The right to vote has become central to our conception of citizenship. It is hard to imagine any modern-day Western theory of governmental legitimacy that does not rest in some essential aspect on “the electoral connection.” Thus, it was startling to witness the Supreme Court’s incautious embrace of a theory of the world’s most important elected office that treats its democratic character as merely discretionary.

Bush v. Gore
is antidemocratic in more than its ordination of a particular electoral outcome. It is oblivious to the democratic character of our Constitution in every aspect of its analysis. Its very starting point—the asserted authority of the states to disenfranchise voters altogether from participation in the selection of presidential electors—is unpersuasive in the face of the text and history of the Fourteenth Amendment . . . The majority’s premise takes no serious account of the text of the Fourteenth Amendment, its history, nearly universal practice since 1868, and the conspicuous deepening of our constitutional commitment to democracy in the ensuing 132 years. The failure even to address these issues mocks the majority’s supposed commitments to textualism and originalism in other contexts.

Bush v. Gore
set a pattern for the coming decade. The Founders of our nation would be brought into play, but not to remind us of how advanced their conception of government was for its time and how their republican commitments expanded our rights. Rather, they would be invoked as after-the-fact advocates for reimposing on our nation the
least
democratic aspects of the era in which they lived.

If the new decade began with
Bush v. Gore
, it ended with another decision that was also, to use Shane’s word, conspicuous as a departure from long democratic precedent. And like
Bush v. Gore
, it was a case of judicial activism tilting the electoral system toward conservative interests and outcomes. The Court’s five-to-four decision in
Citizens United v. Federal Election Commission
on January 21, 2010, allowed the use of corporate and union money in unlimited sums to influence election campaigns.
Citizens United
was, all at once, a truly remarkable piece of judicial activism, a precedent-shattering evisceration of a century-long tradition of limiting corporate power in American politics, a break with the republican tradition’s well-founded fear of political corruption, and a direct interference with the electoral rules in a way that favored those who had put the conservative justices in a position to make the ruling in the first place. In a peculiar turn of history, given that President Bush’s appointees were decisive to this outcome,
Bush v. Gore
made
Citizens United
possible.

The case arose when Citizens United, a conservative group, brought suit arguing that it should be exempt from the restrictions of the 2002 McCain-Feingold campaign finance law for a movie it made that was sharply critical of Hillary Clinton, at the time a presidential candidate. The organization argued that as a First Amendment matter, it should not be required by law to disclose who financed the film.

The conservative majority’s determination to go far beyond the case before it became clear in June 2009 when the Court, in a remarkable act of overreach, postponed a decision and called for new briefs and a highly unusual new hearing. It chose to consider an issue only tangentially raised in the original case by calling into question a 1990 decision that upheld the long-standing ban on the use of corporate money in campaigns. As Justice John Paul Stevens noted later in his scalding dissent, “
Essentially, five justices were unhappy with the limited nature
of the case before us, so they changed the case to give themselves an opportunity to change the law.”

The broad idea of keeping corporate money separate from politics went back to the 1907 Tillman Act, and all the precedents were on the side of insisting that corporations did not have the same rights as actual, live human beings, even if, as a legal fiction, corporations were often treated as “persons.”

The entire episode came as something of a shock to those who had insisted that Chief Justice John Roberts was a moderate sort of conservative and that he would pay close attention to precedent. After all, Roberts had promised exactly this when he appeared before the Senate Judiciary Committee at his confirmation hearings.

“
I do think that it is a jolt to the legal system
when you overrule a precedent,” Roberts had said back in 2005. “Precedent plays an important role in promoting stability and evenhandedness. It is not enough—and the court has emphasized this on several occasions—it is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question, it just poses the question.”