JB

At the end of his discussion of the appointments process, Juan Non-Volokh adds this interesting point, which I cannot resist commenting on:

[M]any of those on the right (myself included) see Bush v. Gore as the Warren/Brennan legacy coming home to roost. For decades, liberals generally supported an activist court that discovered constitutionally protected rights and discarded traditional restraints on an activist judiciary (e.g. much of the political question doctrine, as in Baker v. Carr). In the view of many on the right, the Constitution was "taken over by ideological extremists" during this period. (Nonetheless, the response was not to shut down President Carter's nominees, but to wait until more conservative judges could be nominated by a sympathetic president.) Therefore, when we hear Balkin or anyone else inveigh against Bush v. Gore, our gut reaction is to say "Well now you know how we felt about [insert Roe, Baker, Miranda, or some other outrageous case here]." So while I agree with Balkin that those on the right should try and appreciate the outrage of left over the election, I would also suggest that those on the left should try and appreciate that the right feels the left is simply reaping what it sowed.

I've heard this argument many times since Bush v. Gore was decided. I take the point, but I also think that the it's also a bit misleading in two ways.

First, there is an important distinction between Bush v. Gore and liberal decisions like Roe, Miranda, and Baker v. Carr. It is the difference between "high" politics and "low" politics. Here I will simply quote from my Yale Law Journal article:

Bush v. Gore was troubling because it suggested that the Court was motivated by a particular kind of partisanship, one much more narrow than the promotion of broad political principles through the development of constitutional doctrine. The distinction is between the "high" politics of political principle and the "low" politics of partisan advantage. The same five conservative Justices who formed the majority in Bush v. Gore had been engaged, for over a decade, in a veritable revolution in constitutional doctrines concerning civil rights and federalism. In those decisions, the five conservatives had been promoting a relatively consistent set of ideological positions like colorblindness, respect for state autonomy from federal interference, and protection of state governmental processes from federal supervision. But the decision in Bush v. Gore did not seem to further those values, at least not directly. Rather, the five conservatives seemed to adopt whatever legal arguments would further the election of the Republican candidate, George W. Bush. This is the "low" politics of partisan political advantage. Although few legal academics these days are shocked to learn that Justices' decisions are "political" in the sense that they promote "high politics"-larger political principles and ideological goals-they were quite disturbed by the possibility that Justices would use the power of judicial review in so prominent a case to promote the interests of a particular political party and install its candidates in power.

When we look at the decisions of the Warren Court and early Burger Court, most of them do not seem to be examples of Justices engaged in "low" politics-- making decisions that will help Democrats win future elections. Rather, most of them are examples of "high" politics-- promoting a liberal ideology. Indeed, many of the most famous liberal decisions of this era, including Miranda, Roe, and the busing case, Swann, actually harmed the Democratic party's electoral chances, because they made the Supreme Court a convenient target to run against. Both George Wallace and Richard Nixon used the Warren Court as a convenient foil in their campaigns, and so would many other conservatives in the years following. So Bush v. Gore seems to me to pose a quite different problem of judicial misbehavior than Miranda or Roe. It's not just a case of Justices "making stuff up" in order to promote a conservative ideology through the development of judicial doctrine. It's Justices "making stuff up" in order to put Republican candidates in office. In fact, the majority opinion in Bush v. Gore doesn't really promote any important values normally associated with conservative causes, and the most badly reasoned parts of the decision, the initial stay and the remedy-- stopping the counts instead of remanding for further proceedings consistent with the Equal Protection Clause-- don't have any particular ideological spin at all. They are simply unsupportable exercises of judicial discretion. This is not what liberal decisions of the 1960's sowed, for the liberal decisions in the 1960's could not plausibly be understood as attempts to boostap Democrats into office; indeed, they were done precisely with the expectation that many of them (like Miranda) would not be popular and would precipitate a backlash. Certainly Baker v. Carr did not immediately help Democrats, for it actually undercut the power arrangements that had propped up in the largely Democratic one party South. And anyone who thinks that Roe and the busing cases were thinly veiled attempts to get more Democrats elected to office has been smoking something very strong indeed.

Thus, conservatives might well object to the revolutionary work of the Warren Court, but that objection is somewhat different than the objection that liberals might have to Bush v. Gore. Here let me quote a passage from a Virginia Law Review article that I wrote with Sanford Levinson:

The distinction between high and low politics is important because it suggests two different sorts of criticisms that one might make about the Court’s behavior during a period of constitutional revolution. As we shall argue in more detail later on, constitutional revolutions always concern “high politics”—the promotion of larger political principles and ideological goals. This was true during the New Deal and it is true today. Thus, one might criticize [the Court's recent federalism decisions] because one disagrees with the political principles of the five conservatives, which, one believes, are false to the best understandings of the Constitution.

But the objection to Bush v. Gore is quite different. The result in Bush v. Gore is not easily explained as the promotion of principles of “high politics.” The five conservatives were the least likely, one would think, to extend the Warren Court’s equal protection doctrines in the area of voting rights. Indeed, one member of the majority, Justice Scalia, is on record as opposing novel interpretations of the Equal Protection Clause that undermine traditional state practices. It is hard to imagine that if the parties had been reversed—and Vice-President Gore had been ahead by 537 votes—the five conservatives would have been so eager to review the decisions of a Republican Florida Supreme Court that was trying to ensure that every vote had been counted. The unseemliness of Bush v. Gore stems from the overwhelming suspicion that the members of the five person majority were willing to make things up out of whole cloth—and, equally importantly, contrary to the ways that they usually innovated—in order to ensure a Republican victory and keep their constitutional revolution going. It was obvious to everyone—including the Justices—that many of the key cases in this revolution have been decided by a bare 5-4 majority, and that the party controlling the White House in the next decade would determine the fate of the revolution. Conservative Justices would propel it forward; liberal Justices would curtail or unravel it. With a Republican in the White House, conservative Justices could retire with the expectation that they would be replaced by persons of like mind. If one of the more liberal Justices left the Court, the conservative majority might even increase.

Even if these thoughts never entered the mind of any of the Justices, the circumstances of the decision created the appearance of a conflict of interest and a strong inference of impropriety. The Justices could have avoided the appearance of a conflict of interest by simply remaining out of the fray, but they seemed altogether too eager to get involved. Had Bush v. Gore been an easy case involving clear precedents and rigorous legal argument, one might put some of these concerns to rest. But Bush v. Gore is so shoddily argued and so badly reasoned—from the initial stay on December 9 through the bizarre chain of reasoning that justified the remedy —that it is almost impossible to believe that the best explanation of the result is the internal logic of the law. The case is not only unpersuasive; it is an embarrassment to legal reasoning.

To be sure, the Justices who have spoken out since the decision was handed down have denied that any political motivations or calculations were involved. Justice Thomas, for example, has insisted that the Court has never been motivated by partisan considerations during his time on the bench, that the last political act that Justices engage in occurs during their confirmation hearings, and that he never thought about the political result in Bush v. Gore but was concerned only about the proper implementation of the law. But the more the Justices offer these protestations, the more unbelievable they seem. There is no reason to believe them unless one credits the notion that members of the judiciary are almost altogether different from other Americans who have succeeded in the political world and that they have no agendas of their own or any desire to leave a “legacy” in their decisions.

The claim that Bush v. Gore allows liberals finally to "know what it feels like" is misleading in another respect. The argument seems to assume that until Bush v. Gore the liberals were basically in control, that all of the judicial shenanigans one might have complained about in the 1980s and 1990's were liberal decisions. It makes it sound as if there has been no conservative judicial activism in the recent past, and that conservatives have been repeatedly victimized by an unreleting stream of liberal decisions from the moment that Earl Warren ascended to the bench to December 12, 2000. This is fantasy. Earl Warren has been dead for over thirty years. The Democrats got no Supreme Court appointments from 1967 to 1994. From the retirements of Warren and Fortas to the present day the Supreme Court has become increasingly conservative, and has been in a relatively continuous conservative retrenchment in a whole host of areas, including criminal procedure, the rights of the poor, and race relations. Anyone who has actually been following what the Court has been doing must have noticed that Brennan and Marshall started to write a whole lot of dissents starting in the early 1970's, and they didn't stop. They kept on losing. And losing. And losing. And losing, in a whole host of areas.

There are two big exceptions to this trend. Both have to do with women. The first is Roe v. Wade. The second is the creation of equality jurisprudence for women. However, I take it that when conservatives complain about liberal judicial activism, they are not saying they are very upset that women are now protected from discrimination. (Bush v. Gore-- ha! Now you liberals know what we felt like when women got equal rights!) They are mostly complaining about Roe, and the fact that it hasn't been overruled. That's fair enough, although one must admit that Casey cuts back considerably on Roe and cases like Akron and Thornburgh.

But the more important point is that, particularly in the decade since Clarence Thomas was appointed, the conservative Justices have been striking down statute after statute using what, from a liberal perspective, is just made up stuff. Those decisions, particularly in the federalism area, and not Bush v. Gore, are really the sauce for the goose that Juan is talking about; they, and not Bush v. Gore are the demonstration to liberals of what it is like to be on the wrong side of a constitutional revolution. My point is that those sorts of decisions have been coming out of the Supreme Court of the United States for a very very long time. To pretend that they have not is to pretend that conservatives haven't been controlling the courts, and winning most of the battles for quite a few years now.

The idea that liberals never understood this until Bush v. Gore, and that now, finally, they are getting their righteous comeuppance, is bizzare. Anyone with a leftist sensibility, and any sense of history, knows that the Supreme Court has rarely been a liberal institution. It has always been an elite institution, but throughout most of its history it has been run by conservative elites. From the larger historical perspective, the Warren Court was just a blip on the screen. Knowing this, it is hardly surprising that progressives, not conservatives, have argued for judicial restraint at many points in the Nation's history. For the past decade at least, progressive scholars have been increasingly critical of judicial supremacy and what they see as conservative judicial activism run riot. Bush v. Gore was not the wakeup call; if anything, it simply confirmed what progressive constitutional scholars had known for some time: If you hand the Supreme Court over to people on the opposite side of the ideological spectrum, they will do lots of things that you think are very bad to the Constitution. They will do this both through upholding government actions that should be struck down as unconstitutional, but equally importantly, they will do this by striking down laws and policies that should be upheld.