Among the “third rail” cases in recent Supreme Court history, one stands out the most: Bush v. Gore. Subsequently cited only once by the Supreme Court (in a footnote), it was written so as to not be relied upon, containing the notorious line, “our consideration is limited to the present circumstances.” In other words, “this case will self-destruct on January 20, 2001”. So imagine everyone’s surprise when Bush v. Gore was cited in a newsworthy emergency petition before the U.S. Supreme Court on Thursday.
The petition at issue deals with the Pennsylvania Supreme Court’s decision on Monday to strike down the state’s congressional map, on state constitutional grounds. Beyond just overturning the map, the court also implemented a tight schedule for the state legislature to redraw the districts, giving them three weeks to do so. If no map is submitted by the deadline, or if the governor rejects it, then the Pennsylvania Supreme Court will “adopt a plan based on the evidentiary record developed in the [lower] Court.”
Pennsylvania Republican legislators have now filed with the U.S. Supreme Court an emergency petition to stay, contending that the order of the Pennsylvania Supreme Court improperly exercised the power of the Pennsylvania legislature to draw district lines.
This is where true conservatives would oppose the federal judiciary stepping in to usurp powers reserved to the states. Indeed, the decision is based entirely on an interpretation of the state constitution, which is in and of itself not reviewable by the Supreme Court. But the PA GOP makes the argument that the PA Supreme Court violated the Elections Clause of U.S. Constitution, which states, “[t]he Times, Places and Manner” of congressional elections “shall be prescribed in each State by the Legislature thereof” unless “Congress” should “make or alter such Regulations.” U.S. CONST. art. I, § 4, cl. 1.
Enter Bush v. Gore.
In arguing its case, the PA GOP cites Bush v. Gore, as well as its procedural predecessor, Bush v. Palm Beach Canvassing Board (“Bush I”) in support of its argument. Bush v. Palm Beach is particularly relied upon, as it’s the first, last, and most frequently cited case in the brief. Basically, the petitioners argue that because the Elections Clause vests power to draw district lines with state legislatures, not courts, the U.S. Constitution is violated when state courts act legislatively in the area of federal congressional district line drawing.
However, in citing Bush v. Gore (as opposed to Bush I), the petitioners go even further. Quoting the concurring opinion by Chief Justice Rehnquist, the petitioners argue that the Court is required to review “what Pennsylvania’s lawmakers have written.” In other words, the Supreme Court must not only review whether the PA Supreme Court acted legislatively in mandating the drawing of new maps, but it must also independently review the propriety of the old maps which were drawn by the Pennsylvania legislature.
This, quite frankly, is where the brief goes really haywire. First, Rehnquist’s concurring opinion was joined only by Scalia and Thomas, only one of whom is alive (Kennedy resolved the case on Equal Protection grounds). Second, and more importantly, the concurring opinion went out of its way to note the exceptional circumstances at play, where the fate of the presidency lay in the balance. Third, petitioners seem to argue that the Supreme Court must actually review the adequacy of the original maps, which certainly involves an interpretation of the state constitution.
Given these facts, why would petitioners cite Bush v. Gore at all? What’s the point? Given that Kennedy didn’t join that concurring opinion, they know going in that they cannot get to five on that particular point. Further, by its very nature, the concurring opinion dealt exclusively with the fact that the election at hand was for the presidency. So they just cited the most embarrassing case in modern Supreme Court history, for no discernible gain.
To be clear, I’m not saying that all of the Justices would think poorly of this. After all, Justice Thomas voted for it, and you can probably tack on Alito and Gorsuch. Also, Chief Justice Roberts was on Bush’s election legal team for Bush v. Gore, so you never know. But he is the Justice most concerned with institutional legitimacy, and relying on Bush v. Gore is probably the last thing he wants to do. Plus, you immediately anger all four of the liberal Justices.
Finally, there’s the fact that Pennsylvania’s argument reads exactly like something conservative justices would normally hate: an attempt to have the federal judiciary overturn a state’s interpretation of its own constitution. And most of the brief reads like a thinly veiled attempt to do so.
In one way, however, Pennsylvania’s argument is quintessentially jurisprudentially conservative, in that they argue that courts shouldn’t be able to mandate the conduct of the legislature: “The Pennsylvania Supreme Court has now legislated criteria the Pennsylvania General Assembly must satisfy when drawing a congressional districting plan…”
The natural response to this is that courts do this all the time: they determine whether legislative action is constitutional and then set forth criteria that legislatures must meet to satisfy the constitution.
That is the major flaw in the argument. In order for this to even be a federal issue in the first place, the U.S. Supreme Court must accept the premise that the Pennsylvania Supreme Court (or any court) is not allowed to ask whether legislative action is constitutional, set out criteria for making this determination, and then issue an order to ensure that constitutional strictures will be complied with.
That is why the petitioners will ultimately lose. Justice Alito – the Circuit Justice for the Third Circuit – is surely going to refer the petition to the entire court, and there might even be a stay pending further briefing. But there is a minimal chance that they will convince Chief Justice Roberts and Justice Kennedy and the three remaining conservatives to encroach on state sovereignty in such a fashion, particularly when the main authority on which their argument is based is Bush v. Gore of all cases.