New Wine in Old Bottles: A Comment on Richard Hasen’s and Richard Briffault’s Essays on Bush v. Gore

Abstract

The conventional wisdom in the wake of Bush v. Gore was that the decision represented a significant departure from prior equal protection jurisprudence, and the contributions by Richard Briffault and Rick Hasen to this symposium provide confirmation of that view. I want to make two points in response to their fine essays. First, it is a mistake to try to fit Bush v. Gore into existing equal protection frameworks. As I explain in Part I, Bush v. Gore is best understood as a new type of equal protection claim. On one reading, it addresses broad structural concerns rather than conventional individual harms. Second, I argue in Part II that the structural reading is probably unfounded. Bush v. Gore could, in theory, represent a sophisticated effort to conceptualize democratic principles in structural terms. But it is far more likely that the Court, in announcing a new type of equal protection claim, is simply reverting to one of its bad habits in voting rights cases: decisionmaking unmoored from an explicit normative theory. One of the great oddities in the Supreme Court’s voting rights jurisprudence dating back to the Warren Court is that the Justices often disavow the notion that they are importing a particular theory of democracy into the decision. Their claim to agnosticism is, of course, implausible. And the Court’s self-conscious preference for avoiding any discussion of its normative premises has led to the type of decisionmaking we see in the Bush v. Gore per curiam: an opinion that articulates the injury in an abstract, formal manner; announces a legal rule with no easily discernible limits; defines equality in mechanical, quantitative terms; and fails to address the hard normative issues embedded in the questions it resolves. The Court has, in effect, poured new wine (the novel claim recognized in Bush v. Gore) into the old bottle of past jurisprudential habits.