Late in the evening of December 12, 2000, the United States Supreme Court issued its decision in Bush v. Gore, the case that effectively decided last year’s Presidential election.1 Confused television viewers watched while reporters struggled to make sense of 65 pages’ worth of concurring and dissenting opinions. It took the better part of an hour for the bottom line to emerge: the Court, by a vote of 5 to 4, had ended the recount of contested ballots in Florida and given George W. Bush the narrow electoral vote majority he needed to win the election.
Never before in the nation’s history had a federal court been so intimately involved in the election of a President. To some, including Justices on the Court, the decision in Bush v. Gore sounded the crescendo in an anguished national debate over the appropriate boundaries of judicial involvement in the political process. In a widely quoted passage, Justice John Paul Stevens concluded his dissenting opinion with these words:
The … [decision by] the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.2
In the aftermath of the decision, academic experts and commentators wondered whether the Court had done lasting damage by injecting itself so directly into the political process. Echoing Justice Stevens’ words, New York University Law School Professor Seth Harris said in a newspaper interview that “the Supreme Court has succeeded in finding a way that everyone loses. Gore loses the case and the election. Bush loses the opportunity for the legitimacy of the recount and the clear mandate of a unified Supreme Court decision. And the Supreme Court loses a substantial chunk of its credibility. It is the worst possible outcome to a very difficult case.”3 Others scoffed: “Although there will doubtless be claims of partisanship in the high court's decision,” wrote University of Denver Law School Professor Robert Hardaway, “50 years from now this decision will be remembered not for its technical arguments relating to election law and equal protection, but rather for the fact that it finally ended a fiercely contested election dispute that was threatening to dissolve into political and social chaos.”4
The purpose of my presentation is to set the stage for Professor Rahdert’s discussion of the Supreme Court and higher education law by providing a glimpse into the all-too-human dimensions of the Court, its Justices, and the processes by which the Court is likely to be re-shaped during the Bush presidency. A year ago I might have undertaken the assignment sheepishly, wondering whether the politics of the Court would seem trivial or irrelevant. But after Bush v. Gore, there’s no need to pretend that the Court makes law without a weather eye to the political implications of its work – or that elected officials appoint or confirm Supreme Court Justices without considering their political proclivities. Once upon a time Mr. Dooley could poke fun at the Supreme Court for following the election returns, but now the commingling of political and judicial functions has come to be perceived, cynically or otherwise, as an important dimension of Supreme Court jurisprudence and we live with the fact that the Court doesn’t just follow the election results – it determines ’em.