Justice O’Connor’s Second Thoughts

May 3, 2013
posted by Bob Bauer

Justice O’Connor, in second thoughts about Bush v. Gore, is troubled that the Court might have erred in taking the case. The objection to Bush v. Gore that she does not address is the one aimed at the outcome—that the Court’s fault in injecting itself in the case is compounded by the extraordinary flaw in the decision it reached. To O’Connor, the issue seems to be one of the Court’s reputation; for many others, it is one of result, which is the true cause of the reputational harm done. Her reasoning in this instance brings to mind her expressed regrets about her vote in another elections case, Minnesota Republican Party, v. White, 536, U.S. 765 (2002), and exposes a problem in her view of the Court’s proper role in electoral disputes.

In White, the Court struck down a limit on the “announced” positions that judicial candidates could take on disputed social and political issues. The majority expressed the view, in which she concurred, that the judicial and legislative campaigns were in material respects the same, and campaign speech in each should be protected in like fashion, for First Amendment purposes. But in her concurrence, she questions the wisdom of judicial elections; if we have them, she writes, there are constitutional limits on regulating them, but it is doubtful that we should have them at all. Id. at 788 (O’Connor, J., dissenting) (“I … write separately to express my concerns about judicial elections generally.”) Now Justice O’Connor thinks she may have been wrong to have voted with the majority in White, and the gate thrown open to corporate independent political spending in Citizens United has added to her distress about judicial campaigns.

So when the Court decided Caperton v. A.T. Massey Coal Company, 556, U.S. 868 (2009), holding that massive independent spending for a judicial candidate compelled case recusal, Justice O’Connor was sympathetic to the decision. The “events in that case just didn’t look good”; the situation in which the West Virginia Supreme Court found itself was “egregious.” While the decision could not do more than treat the symptoms of the larger ailment of judicial elections, it was at least “helpful.”

But the decision she is now repenting, Bush v. Gore, is quite similar as a form of adjudication to the case she has embraced, Caperton. In both, the Court responded to facts, declaring them to be exceptional; and in both, insisting that the case was one-of-a-kind, it disclaimed the requirement of a clear rule or standard to cover the immediate decision or to establish expectations for future cases. Bush v. Gore: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Bush v. Gore at 109. Caperton: “The decision today expresses an extraordinary situation … the facts now before us are extreme by any measure.” Caperton at 887. The Court reserved to itself the right in these election law cases to just call them as it saw them, acting when “events … just didn’t look good.”

Of course, in cases like this, the Court also risks not looking good. In Bush v. Gore, Justice O’Connor appears to have concluded that whatever moved the majority to intervene in the Florida recount cost too much in backlash against the Court. Caperton has not stirred up the same volume and intensity of complaint. In fact, many critics enraged by Bush v. Gore have an understandable soft spot for Caperton, taking it to be a step in the right direction—away from Buckley’s ill-fated contribution/expenditure distinction. But, on the fundamental question of how the Court makes election law, the two cases are much alike, even if Justice O’Connor has second thoughts only about one of them.

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