Constitutional Commentary, Vol. 18, No. 2 (Summer 2001), pp. 403-421


Few Supreme Court decisions provoke the immediate and intensely negative verdict that law professors passed on Bush v. Gore. Some of the criticism is deserved. Others have questioned whether the ruling rests on any general principle at all, given the care the Court took to limit its reasoning to the extraordinary circumstances of the Florida presidential election.

It is all too easy to leap from this well-founded critique of the Court's reasoning to the conclusion that the majority – all of whom were appointed by Republican presidents – were bent on installing George W. Bush in the White House by any means they could find, and that the holding rests not at all on law but solely on naked politics. Putting aside the majority's reasoning, a better ground on which to defend Bush is that the Florida Supreme Court (the “Florida Court”) violated article II, § 1, clause 2 of the Constitution, which provides that “[e]ach state shall appoint, in such manner as the legislature thereof may direct, [presidential] electors.” In a concurring opinion, Chief Justice Rehnquist, joined by Justices Scalia and Thomas (the “plurality”), advanced an argument along these lines, and the four dissenters devoted parts of their opinions to refuting it. Though the plurality grasped the basic issue in Bush, it did not make the best case for reversal. The dissenters understandably responded only to the plurality's weak arguments and not the stronger ones that should have been marshaled for reversal.

The Chief Justice was right to be concerned about article II, but committed a critical error in his treatment of the “adequate and independent state ground” doctrine. The plurality was confronted with a state court opinion that did not purport to rely on federal law. If we leave equal protection out of the analysis (as I do throughout the remainder of this article), the threshold question is how one justifies the Court's exercise of jurisdiction, for state courts are sovereign over matters of state law. The general rule is that the Supreme Court may review a case from a state court unless the state court judgment rests on an adequate and independent state ground. The plurality rightly found that, despite the Florida Court's failure to address federal article II issues, there was not an adequate state ground here.

But the plurality was right for the wrong reason. The “adequate state ground” doctrine is complex and sophisticated. It consists of not one but four principles for determining adequacy, with the choice among them depending on the relation between federal and state law in the case at hand. The plurality confused two of its branches and placed Bush in the wrong doctrinal category. Worse, the category in which the plurality put the case demands a stronger showing to justify Supreme Court review than the one to which Bush should have been assigned. The plurality cited cases which hold that the state ruling should stand unless the state court distorted state law in order to evade federal protections. The proper rule for Bush is that the state court's reasoning deserves no deference. The existence of a federal constraint on state court authority, such as article II, is sufficient to justify intervention. As a result of Rehnquist's miscue, the dissenters had little difficulty in rebutting the plurality's justifications for review. Had Rehnquist advanced the more compelling arguments for Supreme Court review that were available to him, the article II challenge could not have been rebuffed with such ease.

While my argument that the plurality and the dissents went astray in their treatment of the adequate state ground doctrine bolsters the result in Bush, it does not necessarily imply that the plurality was right on the merits. Whether the state grounds could withstand scrutiny under the proper test is a separate question from whether the Justices used the right test in the first place. My focus is on the latter issue. As far as the analysis in this paper is concerned, the Florida Court's judgment may still be defensible.