An Act of Courage
LUND, NELSON
An Act of Courage Under Rehnquist's leadership, the Court did the right thing. BY NELSON LUND GENERATIONS of law students have learned that the U.S. Supreme Court should avoid entanglement in...
...The Court could easily have avoidNelson Lund is professor of law at George Mason University in Arlington, Virginia...
...The majority, including two justices who had joined the 1992 abortion opinion, recognized that their decision would subject them to merciless, politically motivated attacks...
...As it happens, we know what Justice Breyer means...
...But Justice Breyer's position does not rest on a disinterested interpretation of the Constitution...
...The High Court's decision at first glance looks important primarily for its effect on this one presidential contest...
...The decision in Bush v. Gore, however, suggests that a majority are now willing to enforce the law more evenhandedly, even when that very evenhand-edness will subject the Court to strident political attacks...
...Which is why the majority decision in Bush v. Gore deserves a spirited defense...
...Some of the more conservative justices have bought into this excessive and asymmetrical concern with protecting the Court's reputation...
...if the Twelfth Amendment argument is the best that the Bush v. Gore dissenters had to offer, the worst was Justice Stevens's claim that Governor Bush irresponsibly impugned the impartiality of the Florida judges by appealing their ruling...
...Rather, it is based on the tired theory that "the appearance of a split decision runs the risk of undermining the public's confidence in the Court itself...
...Justice Breyer, who admitted that the Florida court's decision was arbitrary and unconstitutional, suggested that the Twelfth Amendment assigns Congress (rather than the federal courts) the responsibility for correcting such problems...
...And what fundamental constitutional principle was vindicated...
...Justice Breyer thought the risk not worth running because the majority's decision does not "vindicate a fundamental constitutional principle...
...in that case, moreover, Justice Breyer adopted a farfetched interpretation of a state statute that contradicted the state's interpretation of its own law...
...it is certainly true that almost no one will believe that all the judges who ruled in the election cases were impartial, or devoted to the rule of law...
...These expectations had a real foundation...
...The right to what is euphemistically called "partial-birth abortion...
...one important reason they gave for their decision was a fear that overruling Roe v. Wade would be perceived as a capitulation to political pressure...
...in 1992, for example, the Court reaffirmed the judicially created right to abortion, even while strongly hinting that some of those who voted to do so had serious misgivings...
...The result was the invalidation of a state statute that had been drafted specifically to conform with Supreme Court precedent...
...The significance of this act of courage comes into focus when we consider the strongest argument offered by the dissenters...
...This is a plausible interpretation of the Constitution, especially if one also concludes (as Justice Brey-er did not) that the Constitution authorized the Florida legislature to override the Florida court's attempted retroactive rewrite of the state election statute...
...Despite these considerations, they say, it sometimes "becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront...
...Now there's something worth fighting for...
...Just a few months ago, he wrote the majority opinion in a 5-4 case that split the Court much more bitterly than this one...
...Justice Stevens also noted that the real loser in this year's election will be the nation's "confidence in the judge as an impartial guardian of the rule of law...
...But rather than take the easy way out, they courageously accepted their "unsought responsibility" to require that the Florida court comply with the Constitution...
...Justice Stevens, however, was entirely wrong to place the blame for that fact on his colleagues and on Governor Bush...
...ed this responsibility, and that is what many observers expected...
...Supreme Court should avoid entanglement in "political" cases in order to preserve its reputation for impartiality...
...Impartial guardians of the rule of law" are willing to enforce the law even when they know they will be excoriated for doing so...
...The holding is deliberately narrow, and seems unlikely to have significant effects on future elections...
...What would it mean to "vindicate a fundamental constitutional principle...
...The blame rests squarely on Florida's supreme court, which violated the Constitution, and on the High Court dissenters, who would have let the Florida judges get away with it...
...Bush v. Gore rejects this beguiling logic...
...The broader significance lies in a passage near the end of the majority opinion, where the justices stress their sensitivity to the limits of judicial authority and the wisdom of leaving the selection of the president to the political sphere...
...Unless, of course, such cases involve certain selectively chosen constitutional principles, which invariably call for the uninhibited expenditure of this carefully husbanded political capital...
Vol. 6 • December 2000 • No. 15
