by Christopher P. Banks, David B. Cohen, and John C. Green (eds). Albany: State University of New York Press, 2005. 284pp. Hardcover. $75.00. ISBN: 9780791465356.Reviewed by Justin Wedeking, Department of Political Science, University of Kentucky. Email: justin.wedeking [at] uky.edu.
pp.76-79
THE FINAL ARBITER examines the impact of BUSH v. GORE (2000), arguably one of the major US Supreme Court decisions in recent decades. The edited collection of essays by Christopher P. Banks, David B. Cohen, and John C. Green are divided into two sections that address two primary questions: (1) how did BUSH v. GORE affect the law? And (2) did BUSH v. GORE have any political consequences for governing and politics? The contributing authors bring perspectives from that of law professors and social scientists (predominantly political scientists), and the approaches are very similar, using qualitative essays with timely anecdotes. Two chapters, however, do present basic, descriptively-quantitative evidence. Interestingly, the collection of essays is somewhat eclectic in terms of topic, and presents a somewhat diverse political view, with authors presenting both critical and sympathetic views of the decision.
The book starts with John C. Green’s review chapter, “Bushed and Gored: A Brief Review of Initial Literature,” where Green reviews the initial torrent of literature following the decision. Green characterizes the initial literature as fitting one of three categories: “reportage (how was the disputed election resolved?), polemics (was the resolution a positive or negative development?), and scholarly analyses (what did the resolution mean?)” (p.1). This review is very thorough, his typology is a useful tool, and the review sheds light on nuanced aspects of BUSH v. GORE. Green concludes by briefly summarizing and highlighting the remaining chapters of the book.
The first half of the book starts with an essay by Christopher P. Banks, “The Politics of Constitutional Choices in Light of Bush v. Gore (2000),” where he tackles a range of issues from how the Court historically treats political questions, to the legal and political consequences of the decision. The chapter sets the stage for the entire book by covering the ensuing litigation that attempts to use BUSH v. GORE as legal precedent in equal protection arguments. The chapter also does a nice job of describing public opinion surrounding concerns of legitimacy and confidence in the US Supreme Court. One drawback is that the chapter tries to do a bit much as a single chapter, as the second half (how BUSH v. GORE affected public opinion and the president) appears to fit better with the theme of the second part of the book. Further, if given more space, I would have liked to see the section on citations to BUSH v. GORE given extended treatment. If we are to be persuaded that the case will serve successfully as a precedent, we should start to see, not only litigants using it, but successful litigants should be using it [*77] with increasing frequency. Seeing evidence of this would go a long way towards convincing the reader of its legal impact on the law and legal community.
Tracy A. Thomas next discusses remedies with her chapter, “Bush v. Gore and the Distortion of Common Law Remedies.” Thomas argues the Court used “the law of remedies in an unprecedented way” (p.71). The change results not because the Court provides too little relief, according to Thomas, but because it insists on too many precautionary measures, which Thomas calls prophylactic relief. Thus, according to Thomas, BUSH v. GORE may have widespread application for common law remedies and could come back to haunt the Supreme Court. This is a provocative essay, but it spends too little time focusing on whether post-BUSH litigants ask for this broadened notion of a remedy. In fact, Thomas cites only one case where a trial court used this rationale, but that case was eventually overruled.
Joyce A. Baugh’s chapter, “Bush v. Gore and Equal Protection: A Unique Case?” briefly details a handful of cases that were spawned as a result of the equal protection reasoning in BUSH v. GORE. Ultimately, the chapter fails to provide an answer to whether BUSH is a unique case, even though the chapter documents that “only two cases have applied the equal protection rationale from Bush” (p.101). Interestingly, this chapter stands in contrast to the Thomas and Banks chapters that discuss the importance of BUSH v. GORE as a precedent in subsequent litigation, while Baugh argues that the case is a poor precedent for litigation. Thus, these chapters present somewhat conflicting arguments, and the book would benefit if they spoke to one another on this issue.
Shifting gears, Daniel P. Tokaji’s chapter, “Political Equality After Bush v. Gore: A First Amendment Approach to Voting Rights,” takes a different approach where he reconceptualizes political equality to shed light on the link between free speech and the right to vote. In other words, Tokaji considers how legal doctrine might change if we were to conceive BUSH v. GORE in terms of first amendment cases, rather than the equal protection cases that were cited. The last chapter of Part I, Ann Althouse’s “Bush v. Gore’s place in the Rehnquist Court’s Federalism Oeuvre,” departs from the negative criticisms of the decision that earlier chapters offered. Althouse argues that BUSH v. GORE does not violate federalist doctrine established by earlier Rehnquist Court decisions. For Althouse, the case is consistent with previous decisions because the Rehnquist Court has always been flexible and pragmatic with this complex area of the law. The key nuance is that conservatives view federalism power struggles differently than liberals. This chapter is very provocative and makes a strong argument, despite facing a tough challenge from the weight of the initial literature that painted a Rehnquist Court strongly inconsistent with its own precedents.
Part II focuses on the political consequences of BUSH v. GORE, starting with an essay by Charles O. Jones in which he details different strategies for partisan governing. Unfortunately, not until the last four paragraphs of the chapter does this essay directly address the main question of Part II – how did BUSH v. GORE affect governing? It concludes that the [*78] decision was no more important than other related campaign factors. Perhaps the chapter would benefit by addressing counterfactuals, such as how governing might have differed for Bush if BUSH v. GORE was never reviewed by the Supreme Court (assuming Bush wins any recount), or how governing might differ if Gore were president? Addressing these questions would shed some light on how important the decision was for governing relative to other campaign events.
The chapter by Brian J. Gerber and David B. Cohen details how the Bush administration used largely administrative tactics to achieve policy goals. This is a fascinating chapter in presidential governing that highlights the many routes to achieving policy change. I disagree on one aspect, however, where the authors “argue that the policy choices the Bush administration made reflected a White House that governed as if it enjoyed a clear mandate” (p.172). I would argue the policy choices the administration made do not necessarily reflect an administration that governed with a clear mandate; rather it was the peculiar method of how it governed (under the radar) that illustrates the administration perceived it lacked a mandate. If the administration had a mandate, it would not be necessary to govern under the radar. Overall, despite this minor quibble, this chapter is an excellent read.
Donald Edward Greco’s chapter, “Election 2000 and the Future of Electoral Administration: Gauging the Impact of Bush v. Gore on State-Level Electoral Reform,” examines whether state legislatures have taken on electoral reform legislation. He finds that little was done after the 2000 election and explains that those in power have little incentive to change the structures that helped them gain power in the first place. Switching gears to future elections, Andrew E. Busch’s chapter speculates on how the three phases of elections (pre-election day, election day, and post-election day) will be affected in the future. Busch highlights several lessons to be learned from the 2000 campaign, and one that should intrigue readers is a post-election day strategy to “continue the campaign by litigation if necessary” (p.218). It would be interesting to see a follow-up on whether this occurred in 2004, something that readers do not get until the final chapter. Additionally, the chapter does not attempt to disentangle the potential differences between the impact of BUSH v. GORE and the impact of the 2000 campaign.
John Anthony Maltese’s chapter looks at how politics regarding judicial selection might be affected. For Maltese, while BUSH v. GORE may have contributed to a partisan polarized atmosphere that surrounded subsequent nominations, it was not the driving force that was present before the 2000 election. John W. Wells offers a distinct approach in his chapter, “Testing the Limits of Democracy: Pragmatic Legitimacy and the Election of 2000,” where he expresses optimism with his emphasis on the philosophy of pragmatic legitimacy. For Wells, America avoids controversy because of pragmatic legitimacy and its strength “in accepting the very real limits of democracy while simultaneously refusing to surrender to the postmodern notion that ultimately, no difference exists between arbitrary power and legitimate authority” (p.259). In other words, America accepted the [*79] Court’s decision because it rendered a “reasonable verdict,” not because they agreed with it. One aspect that remained unclear was how pragmatic legitimacy works for Americans who simply desire to avoid politics but still care about the process (e.g., Hibbing and Theiss-Morse 2002). Additionally, it would be interesting to see if any connection exists between this pragmatism offered by Wells and the pragmatic approach of the Rehnquist Court offered by Althouse.
The final chapter by David B. Cohen and Christopher P. Banks, “Reliving Groundhog Day? The 2004 Presidential Election and the Legacy of Bush v. Gore,” uses a unique analogy to a movie that depicts the American electoral system stuck in a cycle of controversy, the exact opposite of early descriptions that characterized it as an anomalous election. The chapter highlights various aspects of the 2004 presidential campaign.
THE FINAL ARBITER arrived on the scene shortly after the 2004 presidential election (with many of the chapters drafted before election 2004), perhaps a bit too early to assess some of the questions raised and whether the legal impact was fully borne out. However, it is still a timely read because we are currently in the midst of the 2008 presidential campaign season, which gives us ample opportunity to observe whether the legacy of BUSH v. GORE lives on.
The book is well written and nicely organized into two sections. The strength of this book is that there is something for most everyone and there is little overlap amongst chapters. The main limitation of the book is, considered as a whole, the argument that BUSH v. GORE had a lasting impact is not overly compelling (excluding the obvious that Bush won the presidency). In one way, the argument of a lasting influence is ironic given the title of the book – THE FINAL ARBITER – that implies no other actors will influence those areas of law and politics. But as many of the chapters argued, others besides the Supreme Court are influencing law and politics subsequent to that case.
THE FINAL ARBITER is well suited for a specialized course in political science that covers campaigns and election law, at either the undergraduate or graduate level. Taking each chapter individually, a course on election law would benefit from reading the Thomas and Baugh chapters. A course on elections and jurisprudence would benefit from the Tokaji and Althouse chapters. Courses on elections and campaigns would benefit from reading Green, Banks, Busch, and Cohen and Banks chapters, while courses that focus on institutions and governing would benefit from reading chapters by Jones, Gerber and Cohen, Greco, and Maltese, and those interested in political philosophy would find the Wells chapter valuable.
REFERENCES:
Hibbing, John R., and Elizabeth Theiss-Morse. 2002. STEALTH DEMOCRACY: AMERICANS’ BELIEFS ABOUT HOW GOVERNMENT SHOULD WORK. Cambridge: Cambridge University Press.
CASE REFERENCE:
BUSH v. GORE, 531 U.S. 98 (2000).
© Copyright 2008 by the author, Justin Wedeking.
