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Richard John Neuhaus

Many in the media followed the New York Times headline declaring that Bush won the presidency by “a single vote” of the U.S. Supreme Court. It now seems to be clear that he beat Gore in the Florida popular vote and thereby won the electoral college and the presidency. But I was earlier criticized for saying that Bush v. Gore did not prevail by “a single vote” in the Supreme Court but by five votes and, upon reflection, by seven votes. Judge Robert H. Bork writes on “The Florida Fiasco” in the New Criterion: “Though the decision appears to be five–to–four, seven justices agreed that a violation of equal protection was in progress and, since a valid recount could not have been completed even by December 18 [the meeting of the electoral college], Bush had, in practical effect, won seven–to–two.” Precisely. Bork goes on to worry, however, that the employment of the equal protection clause may “federalize” all elections, and he wishes that a majority of judges would have agreed to arrive at the same result on the basis of Article II of the Constitution, which is limited to the election of the President of the U.S. Nonetheless, he writes that “Bush v. Gore was a valiant effort, legitimate in law, to rein runaway political passions and a lawless state court those passions had captured.” Along the way, he surveys some of the hysterical partisan attacks on the decision by liberals who have for decades been using the courts to advance their political agendas. Bork is not terribly hopeful about checking this judicial usurpation of politics. “Constitutional law is like inside baseball: only those who play the game have any chance of real understanding.” In the law schools and throughout the judiciary, he says, judicial usurpation is the orthodoxy taught and practiced. “That is part of the case for restrained judges: they will leave to the people what belongs to the people, whether the people know it or not.”

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