I get the sense that many casual observers of the Supreme Court have the impression that there are four Democrats, four Republicans and one swing voter who leans Republican on the court right now. According to this view, if a partisan issue—such as the constitutionality of Obamacare—arises, we could expect four automatic votes on each side.
There are two reasons why a person might oppose Obamacare: political and legal. A person may believe that Obamacare is terrible policy and will bankrupt the country. But that political opinion has no effect on whether Obamacare is constitutional.
Supreme Court justices are supposed to make decisions based on legal reasons alone. If a law is constitutional, they cannot strike it down, even if it is terrible policy. So, if it is true that whenever a partisan issue appears before the court, eight of the nine votes would be automatic, and that would mean that eight of the nine justices are consistently casting illegitimate votes.
This blog has taken the position that the Supreme Court justices are genuine and almost always cast votes for legal, no partisan reasons. In our view, the fact that the Obamacare case will likely be decided by a 5-4 margin can be explained by factors other than partisanship.
Since many seem to disagree with the position this blog has taken, I decided to test it out. The most commonly cited example of partisanship on the Supreme Court is Bush v. Gore, the decision that handed the 2000 election to George W. Bush. I decided to analyze that case to determine whether it could be explained by anything other than a partisan desire to put a Republican in the White House.
A bit of background is in order. As most people remember, the result of the 2000 election depended completely on the result in Florida. Because the margin there was within a few hundred votes, the state conducted a recount. Both the original results and the results of the recount showed Bush ahead narrowly. Al Gore, following Florida law, appealed the results of the recount in a Florida state court, pointing out that approximately 60,000 votes had not been counted even though they clearly demonstrated a choice by the voter. Gore also demonstrated that these votes tended to come from areas where he was likely to win more votes (because areas with richer populations had electronic voting machines that did not suffer from the problems of hanging or dimpled chads.
The Florida Supreme Court determined that Mr. Gore was right. His evidence called the result of the recount into question. The court ordered that the 60,000 ballots in question should be counted if the intent of the voter could be clearly determined.
The US Supreme Court reversed the Florida Supreme Court’s decision. Seven of the nine justices agreed that the Florida court’s decision to order that the 60,000 votes be counted was a violation of the Equal protection clause. The Florida court had not specifically determined whether ballots with dimpled or hanging chads should be counted or not. As a result, the US court believed that the results of the recount would be inconsistent. That part of the decision was largely uncontroversial (two liberal justices agreed).
The court split 5-4 (along liberal/conservative lines) about what should be done as a result of the violation of the Equal Protection Clause. The conservative majority interpreted Florida law to impose a deadline (of only a few days after the Supreme Court decision) on making a final decision about which candidate won in the state. As a result, the majority decided that Florida could not possibly set standards to count the 60,000 votes, count them, and still meet the deadline. Thus, said the court, the additional votes could not be counted, and Bush won the election.
The problem with that decision is that it ran contrary to Florida law. The final arbiter of Florida law is not the US Supreme Court; it is the Florida Supreme Court. The US Supreme Court can only overrule when Florida law violates the US Constitution. But that did not seem to be the case here. The Florida Supreme Court had previously interpreted its own state law so as to determine that the deadline was not a hard deadline, and that the intent of the law was to make sure that the votes were properly counted, no matter how long it took. There is really no credible way to argue that that interpretation by the Florida Supreme Court violated the US Constitution.
In other words, the Supreme Court should have told the Florida courts that they would have to use consistent standards to count the additional votes (in order to comply with the Equal Protection Clause). But the Supreme Court had no legitimate reason to stop the recount all together.
This is all to say that Bush v. Gore was pretty clearly wrongly decided. In fact, very few constitutional law scholars (whether liberal or conservative) argue otherwise. But I’m not certain that this result necessarily means that the court is infected by partisanship. In my next post, I will parse the reasons for why Bush v. Gore was decided the way it was.