A Constitution for All Times

6. The Long Shadow of Bush v. Gore

It is one of the unforgettable moments in recent Supreme Court history, and a decision that will endure in the nation’s memory: in Bush v. Gore (2000), the Court stepped in to decide the presidential election. The Court halted Florida’s recount and announced that the state’s method of reviewing ballots violated the equal protection clause of the Fourteenth Amendment. Although the justices had found a constitutional violation, they weren’t interested—as the Court’s unsigned opinion made clear—in vindicating equality more broadly. Their decision, the justices wrote, “is limited to the present circumstances, for the problem of equal protection in election processes gener6 . The Long Shadow of Bush v. Gore  a constitution for all times ally presents many complexities.” Indeed, Bush v. Gore has been cited by the members of the Court only once—and then in the middle of a footnote in a solo dissent by Justice Thomas advancing the truly radical suggestion that Congress lacks any authority to regulate the presidential election. The Court’s interest in leveling the political playing field waned as quickly as it waxed. Since Bush v. Gore, the Court has consistently refused opportunities to make the electoral process fairer. Consider gerrymandering: nothing makes ballots more worthless than having the election results foreordained by sitting politicians’ artful jiggering of the district lines. Yet the Supreme Court has refused to do anything about the increasingly aggressive and sophisticated means by which officeholders pick their constituents rather than the other way around. Moreover, the Court has turned a purported concern with voter chicanery into a green light for draconian voter-identification laws, despite virtually no evidence of voting fraud perpetrated through pamela s. karlan  impersonation of registered voters at the polls. The Court also has gutted the Voting Rights Act— Congress’s most notable and successful attempt to promote equality within the political process. By striking down Section 4 of the Act, the Court effectively eliminated the requirement that jurisdictions with a history of discriminatory election laws obtain federal approval before implementing new policies. And most notoriously, the Court has dismissed the very idea that equalizing chances for political influence is a legitimate value when it comes to campaign-finance regulation. But Bush v. Gore casts a shadow far beyond the Court’s election-law docket. At the time of the decision, many observers—including Justices Ginsburg, Breyer, and Stevens in dissent—warned that the Court might lose the nation’s confidence in its role as an impartial guardian of the law. That didn’t happen immediately, although by June 2012 a majority of respondents to a poll carried out by the Alliance for Justice expressed concern that “the Supreme Court makes decisions based on a political  a constitution for all times agenda instead of the law.” A May 2012 Pew survey found that public approval of the Supreme Court was at its lowest point in 25 years. But whatever the effect on public confidence, the Court apparently gained a disturbing degree of confidence in itself. Having decided in 2000 that Congress could not be trusted to have the final word in the presidential election— even though the Twelfth Amendment establishes Congress, not the Supreme Court, as the ultimate arbiter—a number of justices have made a habit of expressing their distrust for Congress in other areas. There has seldom been a Court so sure of itself relative to the political branches of the federal government . Perhaps that comes from the narrowness of the justices’ experience with those branches. In contrast to the Court that decided Brown v. Board of Education—which boasted a former governor, several former members of Congress, and a number of high executive-branch officials—today’s Court is far less diverse when it comes to government experience (even if it is more diverse with respect to race and gen- pamela s. karlan  der). Not a single member of the current Court has been elected to public office. Before Justice Kagan’s appointment, every sitting justice had come directly from a federal court of appeals. John Roberts, the current chief justice, likes it that way. In 2009 he claimed this judicial background meant the Court’s “method of analysis and argument [has] shifted to the more solid grounds of legal arguments” and away from “a policy perspective.” And yet the Justices continue to...