When Ruth Bader Ginsburg Dissented in Bush v. Gore
The Court's Decision, She Wrote, Was Based on
an "Untested Prophecy"
Democrat Al Gore and Republican George W. Bush faced off in the 2000 presidential election. A historically close race, the final Electoral College tally came down to a disputed vote total in Florida. A fight over the recount ultimately reached the Supreme Court. Wielding unprecedented influence over electoral outcomes, the Court ruled that the recount could not finish in time and thus must be stopped, effectively awarding Bush Florida and the presidency. They also noted that without a uniform standard to judge recount votes, not everyone’s vote would count the same, violating equal protection.
Justice Ginsburg’s dissent put her in an unusual position: arguing against an equal protection claim. She thought the court should have respected the principles of federalism and abided by the ruling of the Florida Supreme Court, letting the recount go forward unobstructed. Though Ginsburg does not say this, some commentators feared the majority’s equal protection rationale was a ruse, a cover for a politically driven decision. The Court’s decision to use a sui generis ruling—only applying to the case at hand—only bolsters the claim that protecting the equal right to vote was not the Court’s primary motivation.
The Chief Justice acknowledges that provisions of Florida’s Election Code “may well admit of more than one interpretation.” But instead of respecting the state high court’s province to say what the State’s Election Code means, the Chief Justice maintains that Florida’s Supreme Court has veered so far from the ordinary practice of judicial review that what it did cannot properly be called judging. My colleagues have offered a reasonable construction of Florida’s law. Their construction coincides with the view of one of Florida’s seven Supreme Court justices. I might join the Chief Justice were it my commission to interpret Florida law. But disagreement with the Florida court’s interpretation of its own State’s law does not warrant the conclusion that the justices of that court have legislated. There is no cause here to believe that the members of Florida’s high court have done less than “their mortal best to discharge their oath of office,” and no cause to upset their reasoned interpretation of Florida law.
This Court more than occasionally affirms statutory, and even constitutional, interpretations with which it disagrees. For example, when reviewing challenges to administrative agencies’ interpretations of laws they implement, we defer to the agencies unless their interpretation violates “the unambiguously expressed intent of Congress.” We do so in the face of the declaration in Article I of the United States Constitution that “All legislative Powers herein granted shall be vested in a Congress of the United States.” Surely the Constitution does not call upon us to pay more respect to a federal administrative agency’s construction of federal law than to a state high court’s interpretation of its own state’s law. And not uncommonly, we let stand state‑court interpretations of federal law with which we might disagree. . . .
No doubt there are cases in which the proper application of federal law may hinge on interpretations of state law. Unavoidably, this Court must sometimes examine state law in order to protect federal rights. But we have dealt with such cases ever mindful of the full measure of respect we owe to interpretations of state law by a State’s highest court. . . .
In deferring to state courts on matters of state law, we appropriately recognize that this Court acts as an “‘outside[r]’ lacking the common exposure to local law which comes from sitting in the jurisdiction.” That recognition has sometimes prompted us to resolve doubts about the meaning of state law by certifying issues to a State’s highest court, even when federal rights are at stake Notwithstanding our authority to decide issues of state law underlying federal claims, we have used the certification devise to afford state high courts an opportunity to inform us on matters of their own State’s law because such restraint “helps build a cooperative judicial federalism.”
Just last Term, in Fiore v. White (1999), we took advantage of Pennsylvania’s certification procedure. In that case, a state prisoner brought a federal habeas action claiming that the State had failed to prove an essential element of his charged offense in violation of the Due Process Clause. Instead of resolving the state‑law question on which the federal claim depended, we certified the question to the Pennsylvania Supreme Court for that court to “help determine the proper state‑law predicate for our determination of the federal constitutional questions raised.” The Chief Justice’s willingness to reverse the Florida Supreme Court’s interpretation of Florida law in this case is at least in tension with our reluctance in Fiore even to interpret Pennsylvania law before seeking instruction from the Pennsylvania Supreme Court. I would have thought the “cautious approach” we counsel when federal courts address matters of state law and our commitment to “build[ing] cooperative judicial federalism,” demanded greater restraint.
Rarely has this Court rejected outright an interpretation of state law by a state high court. Fairfax’s Devisee v. Hunter’s Lessee (1813), NAACP v. Alabama ex rel. Patterson (1958), and Bouie v. City of Columbia (1964), cited by the Chief Justice, are three such rare instances. But those cases are embedded in historical contexts hardly comparable to the situation here. Fairfax’s Devisee, which held that the Virginia Court of Appeals had misconstrued its own forfeiture laws to deprive a British subject of lands secured to him by federal treaties, occurred amidst vociferous States’ rights attacks on the Marshall Court. The Virginia court refused to obey this Court’s Fairfax’s Devisee mandate to enter judgment for the British subject’s successor in interest. That refusal led to the Court’s pathmarking decision in Martin v. Hunter’s Lessee (1816). Patterson, a case decided three months after Cooper v. Aaron, 358 U.S. 1 (1958), in the face of Southern resistance to the civil rights movement, held that the Alabama Supreme Court had irregularly applied its own procedural rules to deny review of a contempt order against the NAACP arising from its refusal to disclose membership lists. We said that “our jurisdiction is not defeated if the nonfederal ground relied on by the state court is without any fair or substantial support.” Bouie, stemming from a lunch counter “sit‑in” at the height of the civil rights movement, held that the South Carolina Supreme Court’s construction of its trespass laws—criminalizing conduct not covered by the text of an otherwise clear statute—was “unforeseeable” and thus violated due process when applied retroactively to the petitioners.
The Chief Justice’s casual citation of these cases might lead one to believe they are part of a larger collection of cases in which we said that the Constitution impelled us to train a skeptical eye on a state court’s portrayal of state law. But one would be hard pressed, I think, to find additional cases that fit the mold. As Justice Breyer convincingly explains, this case involves nothing close to the kind of recalcitrance by a state high court that warrants extraordinary action by this Court. The Florida Supreme Court concluded that counting every legal vote was the overriding concern of the Florida Legislature when it enacted the State’s Election Code. The court surely should not be bracketed with state high courts of the Jim Crow South.
The Chief Justice says that Article II, by providing that state legislatures shall direct the manner of appointing electors, authorizes federal superintendence over the relationship between state courts and state legislatures, and licenses a departure from the usual deference we give to state court interpretations of state law. The Framers of our Constitution, however, understood that in a republican government, the judiciary would construe the legislature’s enactments. In light of the constitutional guarantee to States of a “Republican Form of Government,” Article II can hardly be read to invite this Court to disrupt a State’s republican regime. Yet the Chief Justice today would reach out to do just that. By holding that Article II requires our revision of a state court’s construction of state laws in order to protect one organ of the State from another, the Chief Justice contradicts the basic principle that a State may organize itself as it sees fit. Article II does not call for the scrutiny undertaken by this Court. The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: Federal courts defer to state high courts’ interpretations of their state’s own law. This principle reflects the core of federalism, on which all agree. “The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other.” . . . Were the other members of this Court as mindful as they generally are of our system of dual sovereignty, they would affirm the judgment of the Florida Supreme Court.
I agree with Justice Stevens that petitioners have not presented a substantial equal protection claim. Ideally, perfection would be the appropriate standard for judging the recount. But we live in an imperfect world, one in which thousands of votes have not been counted. I cannot agree that the recount adopted by the Florida court, flawed as it may be, would yield a result any less fair or precise than the certification that preceded that recount.
Even if there were an equal protection violation, I would agree with Justice Steves, Justice Souter, and Justice Breyer that the Court’s concern about the December date is misplaced. Time is short in part because of the Court’s entry of a stay on December 9, several hours after an able circuit judge in Leon County had begun to superintend the recount process. More fundamentally, the Court’s reluctance to let the recount go forward—despite its suggestion that “[t]he search for intent can be confined by specific rules designed to ensure uniform treatment”—ultimately turns on its own judgment about the practical realities of implementing a recount, not the judgment of those much closer to the process.
Equally important, as Justice Breyer explains, the December 12 date for bringing Florida’s electoral votes into 3 U. S. C. §5’s safe harbor lacks the significance the Court assigns it. Were that date to pass, Florida would still be entitled to deliver electoral votes Congress must count unless both Houses find that the votes “ha[d] not been . . . regularly given.” The statute identifies other significant dates December 18 as the date electors “shall meet and give their votes” “the fourth Wednesday in December”—this year, December 27—as the date on which Congress, if it has not received a State’s electoral votes, shall request the state secretary of state to send a certified return immediately. But none of these dates has ultimate significance in light of Congress’ detailed provisions for determining, on “the sixth day of January,” the validity of electoral votes.
The Court assumes that time will not permit “orderly judicial review of any disputed matters that might arise.” But no one has doubted the good faith and diligence with which Florida election officials, attorneys for all sides of this controversy, and the courts of law have performed their duties. Notably, the Florida Supreme Court has produced two substantial opinions within 29 hours of oral argument. In sum, the Court’s conclusion that a constitutionally adequate recount is impractical is a prophecy the Court’s own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States.
From Decisions and Dissents of Justice Ruth Bader Ginsburg, edited by Corey Brettschneider, published by Penguin Classics, an imprint of Penguin Publishing Group, a division of Penguin Random House LLC. Selection Copyright (C) 2020 by Corey Brettschneider.