In light of the pending Obamacare decision by the Supreme Court, which is due in the next few weeks, cries of partisanship on the Court are as common as Romney flip-flops. The exasperated cries of some journalists (no doubt emboldened by the upcoming election) claim that the only explanation for an opinion holding Obamacare unconstitutional would be that five of the nine justices identify more closely with Republicans than Democrats and will strike down Obamacare because they believe it is bad policy.
I reject that explanation and have argued that the members of the Court, though ideological, make decisions for legitimate legal reasons. Since Exhibit A for the champions of the partisanship storyline is the Bush v. Gore case from 2000, I wondered whether I could come up with a nonpartisan explanation for that decision.
As I discussed in a recent post, the Bush v. Gore case seems pretty clearly wrongly decided. But that does not necessarily mean that the justices voted the way they did for illegitimate reasons.
In Chief Justice Rehnquist’s concurring opinion, which was joined by justices Scalia and Thomas, Rehnquist quoted the directions that accompanied punch-card voting ballots in Florida. The quoted language was:
AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD.
Justice Rehnquist then argued that the Florida Supreme Court had misinterpreted Florida law because,
No reasonable person would call it ‘an error in the vote tabulation,’ or a ‘rejection of … legal votes,’ when electronic or electromechanical equipment performs precisely in the manner designed, and fails to count those ballots that are not marked in the manner that these voting instructions explicitly and prominently specify.
Really? No reasonable person would call those votes valid? Even though a valid vote was defined as one in which the intent of the voter could be clearly determined?
Justice Rehnquist seems to have applied the “when people screw up it is their own damn fault” theory of law. This is the same theory that allows criminals to avoid prison time based on technicalities and allows banks with teams of lawyers to foreclose on immigrants’ homes because the immigrant didn’t understand every detail of the mortgage agreement and got marginally behind on payments.
Justice Rehnquist seems to have assumed that every voter in Florida, 1) read all of the instructions on the ballot, 2) understood them and 3) took the time to follow them to the letter. How many people will do that? There is a category of people who would. Justices Rehnquist, Scalia and Thomas fit into that category. I might fit into that category as well. But most people are not lawyers who pay particularly close attention to politics. I have trouble imagining many people even read those directions.
Yet, several members of the Court partially based their opinion on the assumption that no reasonable person could contend that votes that were not technically in line with the instructions constituted legal votes. I could imagine the three justices who signed that opinion actually believing that every voter of reasonable intelligence read and followed to the letter all of the instructions. But, if so, that belief was ludicrous.
My interpretation of why Bush v. Gore was decided the way it was is by no means the only possible explanation for the outcome of the case. But it does offer an explanation that does not rely on partisanship. It instead relies on what I would call a much more pertinent criticism of the Court: that several of the justices are out of touch with the average American.