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76 Notre Dame L. Rev. 1093 (2000-2001)
Bush v. Gore Was Not Justiciable

handle is hein.journals/tndl76 and id is 1109 raw text is: ARTICLES BUSH v. GORE WAS NOT JUSTICIABLE Erwin Chemnennsky* INTRODUCTION On December 12, 2000, for the first time in American history, the Supreme Court decided who would be the next President of the United States. In Bush v. Gore,' the Supreme Court concluded that it violated equal protection to count the uncounted votes in Florida without dear, uniform standards.2 The Court said that the case could not be remanded to the Florida courts, because Florida law required that the counting be completed by December 12, 2000 to meet the safe harbor provision created by federal law.3 Bush v. Gore was a 5-4 decision, with the Justices split entirely along ideological lines.4 The per curiam opinion wasjoined by Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas; the dissenters were Justices Stevens, Souter, Ginsburg, and Breyer.5 A large segment of the American people-certainly the ma- * Sydney M. Irmas Professor of Public Interest Law., Legal Ethics, and Political Science, University of Southern California. 1 121 S. Ct 525 (2000). 2 See id. at 529, 532-33. 3 See 3 U.S.C. § 5 (1994); Bush, 121 S. Ct at 533. 4 In the aftermath of Bush v. Gore, some commentators suggested that it reall. was a 7-2 decision. See Michael W. McConnell, A AMfuddled Ruling; W'A.. Sr.J., Dec. 14, 2000, at A26. It was not. Two of the dissentingJustices, Breyer and Soiter, agreed that there were equal protection problems with counting votes without uniform stan- dards. SeeBush, 121 S. Ct. at 545 (SouterJ., dissenting); id. at 551 (BreyerJ., dissent- ing). However, their opinions were expressly labeled as dissents. They could have concurred in part and dissented in part, but did not. Moreover, the key difference between the majority and the dissents was whether die counting should be halted or continued. The five Justices in the majority voted to end the counting; the four dis- sentingJustices would have allowed it to continue. The case as clearly and obviously a 5-4 ruling. 5 Also, a concurring opinion was written by Chief Justice Rehnquist that as joined by Justices Scalia and Thomas. It argued that counting the votes in Florida 1093

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