Recalling Bush v. Gore and Anthony Kennedy’s Role in It

            At the McGeorge School of Law (where, full disclosure, I am a law professor), the law review held a symposium on the twenty-five year Supreme Court tenure of Associate Justice Anthony Kennedy earlier this month.  Kennedy, who has had a long relationship with the law school dating back to the mid 1960s, was not present, as is often the case for this kind of academic event.

            Instead, a number of distinguished law professors spoke about the work of the esteemed Justice, focusing as they did on his more important contributions to the jurisprudence of the Court, and, not coincidentally, I’m sure, mostly offering praise for that work.

            Kennedy is highly respected, if not revered, at McGeorge, even though I’d venture to guess that many of my colleagues (who lean heavily to the left politically) would find more to disagree with than to like in his opinions over the years.  But he’s “our own,” or at least has been until he most recently sent word that he won’t be teaching his summer course at the school’s international institute in Salzburg, Austria anymore, thereby effectively terminating his official connection to the school.

            In any event, in the days before the symposium, I engaged in a friendly discussion with one of my colleagues in which I took the position that Kennedy has been far less admirable in his work on the Court than the agenda of the coming symposium was likely to suggest.  My colleague took me to task for this view, asserting that while the Justice has often voted with the Court’s conservative bloc (led by Antonin Scalia, who joined the Court two years before Kennedy, and Chief Justice John Roberts), he has also voted with the Court’s moderates in some important, even ground-breaking cases.

            On reflection, I had to agree.  Kennedy has voted (often as the deciding vote) as I would have wanted him to on a number of occasions, most notably in the decision that essentially declared laws against homosexual conduct unconstitutional (Lawrence v. Texas, a 2003 case) and in several cases that have limited the use of the death penalty (for mentally ill defendants and for defendants who have not been convicted of first-degree murder).

            But one decision, I continued to argue, stands as Kennedy’s legacy, and it is one that I vehemently opposed at the time, and now, almost twelve years later, continue to believe was a betrayal of his core judicial philosophy, in addition to leading to disastrous results for the country.

            And that case, of course, is Bush v. Gore, the 2000 decision by the Court that resolved the presidential election of that year in favor of George W. Bush.

            For those who may not recall (hard to imagine how anyone could forget, but then some people don’t fixate on the unfolding of the nation’s history as I do), the election that year was the ultimate nail-biter, the first one that featured several mistaken projections by the TV networks.  In the end, Gore, the sitting vice-president, won the popular vote by over a half million votes, only to lose the Electoral College vote 271 to 267 when the Court effectively ruled that Florida’s 25 Electoral College votes were to be awarded to Bush.

            Bush was awarded those votes when a Florida Supreme Court order to recount all the votes in the state was stopped by the Court on Equal Protection grounds.  (Subsequent independent, unofficial counts conducted by a consortium of media representatives revealed that, had the full recount been conducted, Gore would have won the state.)

            The opinion in the case was “per curiam,” meaning it was issued “by the Court.”  This practice, of issuing unsigned opinions, is normally reserved for cases where there is no dissent and not much to write about (in terms of the reasoning used by the Justices to reach the decision). 

            Much speculation exists as to why Bush v. Gore was handed down with a per curiam, rather than a signed, opinion.  One possible reason is that no Justice wanted his name associated with it.  If that reason has any basis in fact, Anthony Kennedy may well have been the lead Justice who demanded a per curiam designation.

            But the Court’s per curiam opinion was odd for several other reasons.  First, it rested its decision on Equal Protection grounds, holding that the county-by-county recount system Florida had been using had the potential of discounting votes in some counties while allowing similar votes in others.  Suffice to say, the Equal Protection Clause of the Fourteenth Amendment (one of the Civil War Amendments enacted to make slavery unconstitutional), had never been used for such a purpose, and it certainly did not comport with the views of Professor Kennedy when he taught Constitutional Law at McGeorge during the years when I was a student there.

            Furthermore, the Court seemed to know that it was going way beyond its established jurisprudence on that clause since it included in its per curiam opinion the statement that the case would have no precedential value in future cases.  In other words, the majority was saying, “we are only using this rationale to resolve this case.”  The less charitable translation would be, “we’re using this rationale to pick the candidate we want to win.”

            Kennedy was part of the five-member majority that both declared the on-going recount unconstitutional and denied the state the ability to correct its problem.  On that latter point, he may well have been the deciding vote, a swing vote that set the country’s course for the next decade, during which a wholly unjustified war would be fought and the deepest recession since the Great Depression would result from the elected (Court-chosen) president’s tenure in office.

            To my knowledge, Kennedy has never spoken publicly about Bush v. Gore and his role in it.  He has visited McGeorge any number of times since the case was decided, and I have never spoken to him about it (or, I confess, about anything else, for that matter). 

            He may well not even lose any sleep over it.