Working Paper No. 01-09:
Beyond Counting Votes: The Political Economy of Bush v. Gore
, Maxwell Stearns
Date Posted: 2001
Abstract (below) | Full text (most recent) on SSRN
The Supreme Court Justices' votes in Bush v. Gore revealed a doctrinal inversion. The conservative justices limited the Florida Supreme Court's power to construe state election law and embraced an expansive application of equal protection doctrine to determine the outcome of a presidential election, while the liberal justices advocated judicial restraint in presidential elections and respect for state court construction of state law. This anomaly invited claims in the popular press and in the legal academy that justices were behaving strategically, a timely observation given an increasing focus in recent judicial politics literature on strategic behavior by justices. In this Article, Professors Abramowicz and Stearns use Bush v. Gore to argue that although justices are influenced by their ideological preferences and at times act strategically, institutional norms and doctrine sharply constrain strategic behavior. At the same time, they show how judicial politics and social choice, disciplines generally treated separately, together illuminate case analysis. These theories, when deployed in tandem, explain not only the inversion described above, but also a number of other puzzling features of the various opinions. Based upon clearly articulated assumptions, Professors Abramowicz and Stearns combine judicial politics and social choice to explain, for example, why seven justices, including some who would have preferred a straight reversal and others who would have preferred a straight affirmance, acquiesced in finding an equal protection problem, while no other justices conceded to Chief Justice Rehnquist and Justices Scalia and Thomas in finding a violation of Article II, even though most commentators admit that whatever the overall merits of the case, the second argument was the stronger of the two. The Article further explains why the per curiam majority included a nominal remand, even though the mandate afforded the Florida Supreme Court no room to maneuver and was thus more consistent with a straight reversal. This case study not only provides answers to some of the most intriguing questions about Bush v. Gore, but also develops a technique for combining the tools of judicial politics and social choice, which bridges the demands of predictability of central concern to data-driven political scientists and an understanding of the nuances of doctrine of central concern to legal scholars.