The Rule of Law at Century's End

I. INTRODUCTION In November and December 2000, series of governmental officials and governmental bodies decisions that may have determined outcome of presidential election. Many of those individual decisions-whether exercised by Florida county canvassing boards, Florida Secretary of State, Florida Attorney General, Florida Circuit Courts, Florida Supreme Court, lower federal courts, or United States Supreme Court-corresponded with political affiliation of decision-maker.1 During five weeks of multi-pronged litigation, processes of law never seemed more up for grabs. Had post-election contest continued, it may ultimately have been resolved by avowedly political branches of government, Florida Legislature and United States Congress. 2 All these events raise profound question: Can it still be said, as Chief Justice Marshall did in Marbury v. Madison, that we are a government of laws, and not of men?3 That question has been voiced loudly, especially as it relates to ultimate decision. Immediately after United States Supreme Court decided Bush v. Gore,4 editors of The New Republic pronounced: Are justices, then, hypocrites? Alas, they are not. They are-sub silentio, as they might say-- Republicans. This ruling was designed to bring about political outcome, and it is an insult to intelligence of American people to suggest otherwise.5 In same magazine, Legal Affairs Editor Jeffrey Rosen wrote that Supreme Court had made it impossible for citizens of United States to sustain any kind of faith in rule of law as something larger than self-interested political preferences of William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O'Connor.6 These fulminations cannot be dismissed as overblown rhetoric of aggrieved political propagandists. No less an authority figure than Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg and Stephen Breyer, wrote in dissent that the identity of loser [in presidential election] is perfectly clear. It is Nation's confidence in judge as an impartial guardian of rule of law.7 As of Spring 2001, that charge has gone unanswered. Rosen observed in The New York Times Magazine that few conservative commentators even attempted to defend legal reasoning of decision; instead, they focused on what they considered rough justice of outcome.8 The Washington Post reported on February 21, 2001 that forthcoming law review article by Appellate Judge Richard Posner was first intellectual defense of outcome in Bush v. Gore, but even Posner's article reportedly derides Court's per curiam majority opinion and its reliance on Equal Protection Clause and argues that desire to head off major crisis justified concurring Justices' interpretation of Constitution 9-even if that interpretation was not itself conclusive.10 Notwithstanding dicta, protests, and punditry, rule of law was vindicated in Bush v. Gore. In this article, I defend proposition that Florida Supreme Court's order that ballots be hand-counted statewide offended rule of law, justifying reversal by United States Supreme Court based on Equal Protection Clause and Due Process Clause. I also argue that Court's majority opinion is consistent with conservative jurisprudence, properly understood, and that intellectual debate over Court's decision reflects wider Kulturkampf in contemporary legal thought that extends to meaning and desirability of living under rule of law.11 Ironically enough, intimations of correctness of Bush v. Gore can be read in unheralded opinions subsequently issued by Florida Supreme Court. On December 14, 2000, after Vice President Gore had conceded election, all seven Florida justices concurred in two-page order dismissing case because [o]n date of subject election, Florida Election Code did not provide elements necessary for resolution of disputed issues, based on constitutional parameters expressed by United States Supreme Court. …