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

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