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At the end of a long and pleasant lunch at the Supreme Court recently, Justice David Souter paused and told an old friend: “I’m very grateful that we didn’t talk about Bush v. Gore.” Souter’s comment, recounted by the justice’s lunch companion on the condition of anonymity, offers a glimpse into the Supreme Court’s term that ended last week. There was Bush v. Gore — the Dec. 12 opinion that resolved the Florida post-election recount dispute in favor of George W. Bush — and then there was everything else. The justices would just as soon not think or talk about Bush v. Gore anymore, though they have apparently reached the stage where they can laugh about it. At the law clerks’ annual invitation-only show for the justices on June 26, the case was the target of several send-ups. “After Bush v. Gore, they rolled up their sleeves and worked hard to put it behind them,” says Drake University law Professor Thomas Baker, once an aide to Chief Justice William Rehnquist. “Now, I think there’s a surreality to the case in their eyes. It’s almost like it wasn’t this term, not even this Court.” Like it or not, however, Bush v. Gore, No. 00-949, did emanate from this Court this term. The first wave of book-length analyses of the case has emerged, with Alan Dershowitz and Vincent Bugliosi portraying it as a lawless and aberrant decision that runs contrary to the Court’s recent jurisprudence on federalism and equal protection. But, at the same time, other scholars and analysts are trying to stitch Bush v. Gore back into the fabric of the Rehnquist Court — to see how it fits in with the Court’s overall direction. What’s emerging is a consensus: Bush v. Gore does fit into the broader patterns — but only if the Court is viewed, not as a states’ rights Court, or a Court that takes a narrow view of constitutional rights, but as a judicial supremacy Court, a Court that takes no guff from the other branches. It’s a Court, in other words, bold enough to intervene in the messes the other institutions of government get themselves into, and self-confident enough to think it knows best how to fix them. “This is the least deferential Supreme Court in American history,” says former acting Solicitor General Walter Dellinger, now national chairman of the appellate practice at O’Melveny & Myers. “The theme of the last five years is not federalism but judicial supremacy.” Adds University of Virginia law professor A.E. Dick Howard: “I continue to be awed at the willingness of the Supreme Court to step into matters that Felix Frankfurter would never have gotten into. This term shows that to be conservative is not to be lacking in self-confidence.” Frankfurter was a leading proponent of judicial restraint. THE RULE OF LAW Whether this boldness looks good or bad depends on the beholder’s political bent. Douglas Kmiec, a former Reagan Justice Department aide and incoming dean of Catholic University of America’s Columbus School of Law, sees the Court’s term, including Bush v. Gore, as a “triumph of law over politics.” He explains, “It nourishes the notion of a rule of law, because it says there are some things best resolved by a group of people who are independent, with life tenure and undiminished salaries.” Kmiec also thinks the Court did not make a power grab in the election case, but accepted the “unsought responsibility” of resolving the mess. But to Erwin Chemerinsky, law professor at the University of Southern California, the Court’s assertiveness heralds “a new era of the imperial judiciary.” That new era may have reached its apex in Bush v. Gore, but it actually got started several years ago. A Supreme Court that once touted its desire to recede from the spotlight began grabbing it with its cases cutting back congressional commerce clause power in United States v. Lopez, the 1995 ruling that rejected the Gun-Free School Zones Act, and continuing through last year’s United States v. Morrison, striking down parts of the Violence Against Women Act. In City of Boerne v. Flores, the Court in 1997 said Congress had no business passing laws — in that case, the Religious Freedom Restoration Act — that interpret the Constitution. Drake’s Baker calls it “judicial hubris, something they have in common with the Warren Court — an abiding belief that they know better.” Whatever you call it, the trend appears to have blossomed across the landscape this term. The same Court that made short shrift of the ability of the Florida Supreme Court — or Congress for that matter — to resolve the 2000 presidential election has elbowed aside a wide range of institutions in other decisions this term. Those that bore the brunt of the Court’s power display this term included: � the voters of California, who decided by a 56 percent majority that seriously ill people who would benefit from using marijuana for medicinal purposes should be allowed to do so ( United States v. Oakland Cannabis Buyers’ Cooperative, No. 00-151); � administrative agencies, whose low-level decisions, such as classification rulings by the U.S. Customs Service, were once accorded so-called Chevron deference ( United States v. Mead Corp., No. 99-1434); � jurors who return big punitive damages verdicts ( Cooper Industries Inc. v. Leatherman Tool Group Inc., No. 99-2035); � political parties that want to coordinate their spending with their candidates ( Federal Election Commission v. Colorado Republican Federal Campaign Committee, No. 00-191); � and even the Professional Golfers Association, on the nature of the game ( PGA Tour v. Martin, No. 00-24). Of course, it was Congress that ended up on the receiving end with great frequency. The justices struck down laws that tried to restrict immigrants rights ( Ashcroft v. Ma, No. 00-38, and Zadvydas v. Davis, No. 99-7791, and Calcano-Martinez v. Immigration and Naturalization Service, No. 00-1011, and Immigration and Naturalization Service v. St. Cyr, No. 00-767); muzzle legal services lawyers ( Legal Services Corp. v. Velazquez, No. 99-603); punish the disclosure of eavesdropped telephone conversations ( Bartnicki v. Vopper, No 99-1687); protect disabled state workers ( Board of Trustees of the University of Alabama v. Garrett, No. 99-1240); and promote the cleanliness of ponds ( Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178.) The Court was not in a defiant mood in every decision this term. The case involving the Federal Election Commission can be viewed as a bow to congressional campaign finance reform efforts. In another case involving government rules, Whitman v. American Trucking Associations, No. 99-1257, Congress and the Environmental Protection Agency won at least a partial victory on setting air quality standards. The North Carolina legislature also finally won some respect for its redistricting efforts ( Hunt v. Cromartie, No. 99-1864). The Supreme Court also did not step up to the plate every time its intervention was sought. It passed on the Microsoft antitrust litigation, though it could find its way back. And just last week it declined to hear Hopwood v. Texas, the long-running case on affirmative action in higher education — though that issue, too, will be hard for the Supreme Court to avoid in other cases next term. The justices also made a mark by siding with criminal defendants in a spate of cases upholding the search warrant requirement of the Fourth Amendment. In Kyllo v. United States, No. 99-8508, the Court drew a technological line against thermal imaging devices and other police tools that pierce the privacy of a home. In Indianapolis v. Edmond, No. 99-1030, and Ferguson v. City of Charleston, No. 99-936, the Court disapproved of police programs that searched cars and pregnant women, respectively, for illegal drugs. An expansive view of the Fourth Amendment did not extend, however, to Atwater v. Lago Vista, No. 99-1408, in which the Court said people could be arrested for minor offenses that are punished with only a fine. In five separate decisions, the Supreme Court also continued its embrace of arbitration as an alternative to litigation. And in its most important church-state case of the term, Good News Club v. Milford Central School, No. 99-2036, the Court said a Bible club could not be deemed too religious to meet on public school grounds. It could bode well for the Bush administration in future battles over school vouchers and faith-based initiatives. The Court continued to be sharply divided, voting 5-4 in 26 of 85 cases during the term, with Justices Anthony Kennedy and Sandra Day O’Connor playing their usual role as crucial swing votes. That closeness and unpredictability made it hard for practitioners and scholars to see consistent themes this term. “There are no principles, no trends, just ad hoc opinions,” says Michael Carvin, a partner in the Washington, D.C., office of Jones, Day, Reavis & Pogue. Carvin cited the FEC case, Bartnicki, and United States v. United Foods, No. 00-276, which struck down a federal program that compelled mushroom growers to pay for generic advertising. “The Court is protecting mushroom growers’ speech in United Foods, and stolen speech in Bartnicki, but not the core speech of political parties in FEC,” says Carvin. A CASE FOR THE AGES But no matter what else the Court did in the term that ended on June 28, Bush v. Gore will dominate the history books. But for now, the justices are doing all they can to discourage discussion of what went on inside the building during the post-election litigation. Nonetheless, stories are seeping out. One involves a clerk, his wife, and basketball at the nation’s highest court. Jonathan Cohn, a clerk to Justice Clarence Thomas, might have felt like the only person in Washington not consumed by the case. His wife, Rachel Brand, now an assistant White House counsel, was then a lawyer at Cooper, Carvin & Rosenthal and part of the Bush legal team in the Florida courts. Because of her role in the litigation, Cohn recused himself from any involvement in the intense research and opinion-writing at the Court for the Florida cases. On the day Bush v. Gore was handed down, the story goes, Cohn sent an e-mail to fellow clerks to see if anyone wanted to play basketball on the court inside the Supreme Court building. Cohn couldn’t find any takers among exhausted clerks, who razzed him in a flurry of e-mails. Contacted last week, Brand said she and her husband were “very careful” to avoid conflicts by staying away from all aspects of the Supreme Court litigation. She would not confirm the basketball story, but did allow that Cohn “may have been twiddling his thumbs” that fateful day.

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