The Judicial Philosophy of a Justice of the Rehnquist Court

Justice Antonin Scalia in Bush v. Gore 531 U.S. 98 (2000)

Frederik Flagstad

November 17^th, 2005

The individual philosophies of the United States Supreme Court justices change little over the career of the justice. Justice Antonin Scalia demonstrates this continuously with one notable exception. In the case Bush v. Gore 531 U.S. 98 (2000), Justice Scalia took a stance contrary to his usual judicial philosophy. In Bush v. Gore, Justice Scalia’s dissenting opinion interfered with the state of Florida’s authority, and reversed the decision of the Florida Supreme Court. Was Justice Scalia’s vote in the ruling which in effect determined the presidency of the United States affected by his political beliefs? His originalist judicial philosophy prevents him from altering a state decision pertaining to state law, and Justice Scalia hence acted against his own beliefs in Bush v. Gore, when he overturned a state court decision only regarding state law.

Antonin Scalia, arguably the most colorful of the current justices on the bench, frequently evokes a wide range of sentiments from the public and his fellow justices. His often controversial and combative behavior has left him quarreling with fellow justices, yet none can deny his unique intellect and brilliant judicial skills. Justice Scalia stands out on the Supreme Court as arguably the only Justice with some color and social skills; Scalia has even given evidence of a sense of humor, stating that “ah yes, esteemed jurist by day, man about town by night”.

Justice Scalia once admitted at a conference of law students that he did not feel powerful because of his position, but instead agonized that duty commonly forced him to vote on actions that “I don’t want to do” (www.oyez.org/resources/legal_entity/103/print, p. 2). In the past he has referred to colleagues as “perverse” and “irrational” in disagreement on a case or issue, and this ring true today to his character.

In 1936, Justice Scalia was born in Trenton, New Jersey to immigrant parents. At the age of 5, Antonin Scalia moved to Queens, New York. “Niño” as Justice Scalia is called amongst peers, started public school in Queens and later went to St. Francis Xavier, a New York prep school for the military. He went to Georgetown University for undergraduate studies, and graduated as a valedictorian from Georgetown. Justice Scalia thereafter went to Harvard University, becoming the editor of the Harvard Law Review, and graduating magna cum laude. After graduation, Scalia traveled Europe where he met Maureen McCarthy who he married and now have 9 children with. Both Justice Scalia and his wife are very devout Catholic, and live very much by their faith.

While president, Nixon realized Scalia’s value, and nominated him Head Justice of the department’s office of legal council just before the Watergate scandal. Doing Watergate, Scalia decided in favor of Nixon’s favor in determining the legal ownership of the Nixon tapes and documents. Afterward, Scalia worked for Chicago University from 1977 to 1982 where it became apparent that Scalia was more concerned with politics then academic law.

Scalia was appointed to the US Court of Appeals in 1982 by Ronald Regan, and moved over to the Supreme Court in 1986 when Justice Rehnquist became Chief Justice of the United States Supreme Court. Scalia was approved by a strong bipartisan Senate vote of 98-0. Today Justice Scalia has been on the Supreme Court for just under 20 years, and continues to serve the court well with his humor and judicial philosophy.

In the year 2000, in the case Bush v. Gore, Justice Scalia played a vital role in deciding the presidency of the 43^rd President of the United States. The case evolves around the 2000 presidential election; where the state of Florida was too close to call. Once the results were tallied, the Florida Division of Elections reported that petitioner Bush had received 2,909,135 votes, and Gore had received 2,907,351 votes, a margin of 1,784 for Governor George Bush. If the margin of victory in the State of Florida is less then “one-half of a percent … of the votes cast,” then an automatic machine recount must take place under § 102.141 (4) of the Florida Election Code. The new results confirmed Governor Bush as winning, but with a reduced margin of only 527 votes.

Vice President Gore then asked for a manual recount of the ballots in Palm Beach, Volusia, Broward, and Miami-Dade counties. This was justified by the Florida election protest provision, and hence another dispute arose with regards to the deadline for the manual recounts from the county electoral boards. According to the Florida election code, all recounts must be done before the 14^th of November (§§102.111, 102,112.), and the secretary of state refused to alter this deadline. The Florida Supreme Court then decided in their ruling to set the deadline at the 26^th of November. The Supreme Court granted certiorari and vacated the decision of the Florida Supreme Court, “finding considerable uncertainty as to the grounds on which it is based.” Later the Florida Supreme Court, on the 11^th of December, decided to reverse and thereby reinstating the original ruled date.

None the less, the Florida Election Canvassing Commission approved the results of the election on the 26^th of November, declaring Governor Bush the winner of Florida’s 25 electoral votes. Two days passed before Vice President Gore filed a complaint with the Leon County Circuit Court contesting the certification of the election. He sought relief pertaining to §102.168(3)(C), which states that “Receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election” (Gore v. Harris, Case Number 00-2808, Year 2000, 772) should be the grounds for contesting the result. The Circuit Court denied relief stating that Vice President Gore did not meet the burden of proof. Vice President Gore then appealed the decision to the District Court of Appeals, which certified the case to the Florida Supreme Court.

The Florida Supreme Court accepted to take the case, and reversed the ruling of the District Court of Appeals in part, and affirmed the ruling in part. The Florida Supreme Court held that the ruling of the District Court of Appeals stood with regards to Nassau County and Palm Beach County, whereas it overturned the ruling with regard to Miami-Dade County, holding that Vice President Gore had sufficiently fulfilled the burden of proof under § 102.168(3)(C). At issue were the 9,000 ballots in which no presidential vote had been cast, the so called undervotes. The court stated that “On this record, there can be no question that there are legal votes within the 9,000 uncounted votes sufficient to place the results of the election in doubt” (Gore v. Harris, 1261). According to the Florida Supreme Court, a “‘legal vote,’ as determined by the supreme court, is “one in which there is a ‘clear intent of the voter’” (Gore v. Harris, 1257). Hence, the court ordered a manual recount of the 9,000 votes in the Miami-Dade County. The district court was furthermore ordered to “provide any relief appropriate under such circumstances,” § 102.168(8). The Florida Supreme Court did not stop here, and held that the Circuit Court could order "the Supervisor of Elections and the Canvassing Boards, as well as the necessary public officials, in all counties that have not conducted a manual recount or tabulation of the undervotes ... to do so forthwith, said tabulation to take place in the individual counties where the ballots are located." (Gore v. Harris, 1262).

In the end the Florida Supreme Court decided to count the extra votes in Palm Beach County rejecting the decision by the Circuit Courts that the votes lacked authority in justification of this surprising move. The Florida Supreme Court stated that it was never the intent of the Florida election code to exclude anyone from the election.

The petitioner Governor George W. Bush Jr. presented the following legal question based on the evolvement displayed above. “[Has] the Florida Supreme Court established new standards for resolving Presidential elections contests, thereby violating Article II, § 1, Clause 2 of the United States Constitution and failing to comply with Article III, § 5 of the United States Constitution, and whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses. With respect to the equal protection question, we find a violation of the Equal Protection Clause” (Bush v. Gore, 103).

In his dissent, Justice Scalia initially made the distinction that while electors do not hold federal office; their job in itself exercises a federal function. There actions are carried out in accordance with the Constitution of the United States, and the President which they select is vested with the executive power of the United States.

“[I]n the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest. [T]he President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation” (Anderson v. Celebrezze, 460 U. S. 780, 794-795 (1983)). While Justice Scalia is a firm believer in the originalist approach, the argument is made here that while respect for federalism forces us to defer to the decisions of state courts on the issue of state law, there are a few unique cases where the Constitution of the United States confer certain powers to a particular branch of the states government. In this case, Article II, § 1, Clause 2, affords that “Each state shall appoint, in such a Manner of the Legislature thereof may direct,” electors for President and Vice President. Hence, the electoral law of the individual state is not only a matter of that state, but can have great effect upon the nation at large.

In order to appropriately select the electors, the legislation governing the process must be enacted prior to the election, and the final decision must occur six days in advance of the meeting of the Electoral College. This is echoed by Title 3 of the United States Code, § 5[1], which clarifies the application of Article II, § 1, Clause 2 of the Constitution of the United States. Since this has become a principle in the U.S. Code, this once again becomes an obligation of the federal government, and hence the Supreme Court, to ensure that the legislative body is not negatively affected by state version/application of federal law.

In Florida, the legislative body decided to hold statewide elections in order to select the 25 electoral members. It was also decided that any disputes in the election process should be brought to the attention of the Secretary of State (Florida Statute § 97.012(1)). After elections take place, the canvassing boards receive returns from precincts, count the votes, and in the event that a candidate was defeated by 0.5% or less, conduct a mandatory recount. The county canvassing boards must file certified election returns with the Department of State by 5 p.m. on the seventh day following the election (Florida Statute § 102.112(1)). These must then be certified by the Elections Canvassing Commission (Florida Statute § 102.111(1)).

The key here is the certification deadline. In extending the deadline, the Florida Supreme Court overruled the power of the legislative body and the Secretary of State, and took away their power to legislate an appropriate deadline. Furthermore, the Florida Supreme Court decided to expand the understanding of “legal vote”, beyond the interpretation of the Secretary of State. The instructions on the voting ballots were very clear, and therefore one could argue that improperly filled out ballots should not be counted as legal votes. Most undervotes are recognized as undervotes due to either improper voting or as a result of an actual under vote.

December 12, 2000 was the last day in which the Florida electorate would appropriately satisfy § 5 of title 3 of the U. S. C. This fact should have nullified the Florida Supreme Court’s ruling on December 8^th, ordering a recount of tens of thousands of undervotes in most counties. Since there were no indications of fraud at the time, there was no justification for another recount of the ballots, which had already been counted twice by the voting machines. The recount could not have been completed before the above deadline, and hence it was inappropriate to initiate this last recount.

The judicial philosophy applied in this case is not clear. Scalia has throughout his career advocated a very conservative interpretation of the constitution most commonly referred to as jurisprudence of original intention. He refers to this approach as “originalism” in his scholarly writings, speeches and judicial opinions. Scalia also refers to other resources that indicate the original intention of the framers in creating the constitution such as the framers of the constitution and the content of the federalist papers. While originalism can be argued in many different manners, it foremost conveniently fit into Scalia’s political philosophy. In his defense, Scalia has often justified his point of view with the Constitutional text that indicate no need to change according to public opinion or trends. No other interpretation of the constitution used today is more predictable, and using a Stare Decisis analysis or a Balancing Approach will force one, as a judge, to decide whose values should be valued more, and these interpretations allow for a much more free interpretation of the Constitution which will make the Constitution unpredictable and weak.

“[W]hile Scalia claims to defer to the intent of the framers to clarify the meaning of the Constitution, his own admission in “Originalism” – that ascertaining the historical intent is often difficult – suggests that perhaps ideological factors influence how Scalia reads what the framers mean or what he claims the framers meant.” (Schultz/Smith, 1996, p. 41) Many critics would in response argue that the Constitution is a living document and hence open to interpretation. Intent should not be considered over interpretation as society evolves, and should hence adopt the constitution to reflect the modern era.

Another aspect of Justice Scalia’s judicial philosophy is his idea of states, and the divide between states and the federal government. Justice Scalia adheres to a laissez faire approach, and does not believe in interfering with State Courts unless federal law is being infringed upon. This is particularly relevant in Bush v. Gore, where Justice Scalia decided to overturn the decision of the Florida Supreme Court.

Justice Scalia sees the Supreme Court predominately as a shield for the citizens of the United States against the federal government. The court should accordingly take a passive rather then progressive stand, and respond merely when a constitutional question is raised. Other justices, such as former Chief Justice Warren, see the Supreme Court as an agent of change. President Regan appointed Justice Scalia in response to the Warren era, which was the liberal progressive era of the Court. Regan and Justice Scalia believe in the Court’s self-restraint and are very hesitant to reach beyond the authority of the court and change the essence of the Constitution.

As time passes by, the country which the constitution guides changes tremendously, yet according to the philosophy of Justice Scalia, the constitution of the United States does not. Its values were dictated by the founding fathers, and should not be altered at will in order to fit modern society. These values should be applied where appropriate, and guide the development of the United States. While the Constitution can change our modern society, it should always be understood as a shield and not a sword. Hence it can be concluded that while the meaning the constitution has upon people over time do change, the actual document does not (disregarding the possibility of amending the constitution).

The constitutional rationale behind Justice Scalia’s judicial philosophy makes logical sense, yet Justice Scalia is one of the few justices that adheres to the “original intent” judicial philosophy. At the other end of the spectrum in today’s Supreme Court, we find Justice Breyer, one of the more liberal justices in the Supreme Court. Justice Breyer holds the constitution to be an evolving document, and hence forth holds the right as a Supreme Court Justice to interpret the constitution appropriately. He does not believe in original intent, finding this methodology to be not directly old-fashioned, but similarly ancient as this philosophy did not evolve since the constitution was originally written.

Bush v. Gore were settled in December 2000, but today, there is still much debate about the case, and depending on the source, more or less justified claims about the election have been presented. In the movie “Fahrenheit 9/11” (Moore, 2004), the election is presented as fraudulent, an allegation which have not been proven in a court of law. Much literature such as “Bush V Gore” (Dionne, 2001) and “Supreme Injustice” (Dershowitz, 2001) commented on the case from a liberal perspective and disagreed with the outcome of the case. In terms of actual precedent, this case shows how the Supreme Court can interfere with local elections for federal positions, yet the case have not yet been used as precedent in other cases.

This case were different in many manners from the mainstream Supreme Court, and the opinion were written as a "per curiam" decision, which is a decision delivered via an opinion issued in the name of the Court rather than specific justices. Even when the decision is unanimous, it is not necessarily termed "Per curiam". Usually, Per curium decisions regard issues which the Court views as relatively non controversial (http://www.law.cornell.edu
/wex/index.php/Per_curiam). This is not the case in Bush v. Gore which is neither short, nor unanimous. Per curiam means “in the opinion of the court”, and the reason why this was used in the case Bush v. Gore, were to indicate a less political stance even though there were disagreements within the Court, and the case was very political. The court, while not standing united on the issue, stood united in the final decision and hence preserved the power of the ruling.

The minority consisted of four justices whom held for Vice President Gore. Justice Souter, Justice Stevens, Justice Ginsburg and Justice Breyer held in multiple dissenting opinions the general belief that “When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers. On rare occasions, however, either federal statutes or the Federal Constitution may require federal judicial intervention in state elections. This is not such an occasion.” (Bush at 123).

Conclusively, while it seemed that Justice Scalia ruled against his own convictions in Bush v. Gore, his concurring opinion makes it clear he acted in accordance with his beliefs and vote in the manner in which he did due to the association of federal law. Since on the 8^th of December, the Florida Supreme Court’s decision went against the United States Code, Justice Scalia found it necessary, due to federal law, to overturn the Florida Supreme Court’s decision and stop the recount. In terms of the court case and the legislation presented, the opinion of the court seems not only fair, but necessary. I must therefore agree with Justice Scalia for holding with the petitioner in the opinion of Bush v. Gore.

Bibliography

• Bush v. Gore. 2000. 531 U.S. 98.
• Gore v. Harris. 2000. Case Number 00-2808
• Anderson v. Celebrezze. 1983. 460 U.S. 780
• Constitution of the United States of America. 1787.
• Florida Election Code. Amended 2001. Statutes at
• § 102.111 (1)
• § 102.112 (1)
• § 102.141
• § 102.168 (3)(c)
• § 102.168 (8)
• United States Code, Title 3, Article 5
• Epstein, Lee, and Thomas G. Walker. 2004. Institutional Powers And Constraints. 5^th ed. Washington DC: CQ Press
• Epstein, Richard A., Cass R. Sunstein. 2001. The Vote: Bush, Gore, and the Supreme Court. The University of Chicago Press
• Zelnick, Robert. 2001. Winning Florida – How the Bush Team Fought the Battle. Hoover Institution Press
• Brisbin, Richard A. 1997. Justice Antonin Scalia and the conservative revival. The John Hopkins University Press
• Greene, Abner. 2001. Understanding the 2000 election. NYU Press
• Schultz, David Andrew and Christopher E. Smith. 1996. The Jurisprudential Vision of Justice Antonin Scalia. Rowman & Littlefield Publishers Inc.
• Dershiwitz, Alan M. 2001. Supreme Injustice. Oxford University Press
• Dionne Jr., E. J. and William Kristol. 2001. Bush v. Gore. R. R. Donnelley and Sons
• Eastland, Terry. 2000. Freedom of Expression in the Supreme Court. Rowman & Littlefield Publishers Inc.

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[1] http://www.law.cornell.edu/uscode/html/uscode03/usc_sec_03_00000005----000-.html