'To Do a Great Right, Do a Little Wrong': A User's Guide to Judicial Lawlessness

Abstract

This essay offers guidelines for courts to follow when engaging in extralegal decisionmaking. It begins by hypothesizing that the remedial decision in Bush v. Gore - the decision not to permit Florida to engage in further recounting - is best understood as an example of such a decision, i.e., as a case where the Court ordered an outcome it thought would serve the country's interests despite being unjustifiable by reference to traditional legal standards. The essay argues that the courts' usual practice of limiting themselves to decisions they can support with plausible interpretations of legal doctrine helps to constrain judges and provides a partial, but useful, brake on the temptation to make undemocratic and unwise decisions; as judges abandon doctrine in favor of more bluntly pragmatic grounds for decision, it becomes important for them to observe other constraints that can serve the purposes normally furnished by an adherence to more traditional judicial methods. The essay suggests a series of such constraints and considers whether they were observed in Bush v. Gore.

First, such decisions should be reserved for cases where the harm to be averted is unambiguous, i.e., where the costs and benefits of the proposed judicial action are sufficiently uncontroversial to serve as impartial bases for decision. This was not the case in Bush v. Gore, as it was both empirically and conceptually difficult to determine in a politically neutral way whether the benefits of the Court's remedial decision outweighed the costs. Second, such decisions should be taken only to address problems with which actors and institutions cannot effectively cope, and should do so in calibrated ways that allow other actors to check the court's judgment. In Bush v. Gore there were other actors in a position to deal with the problems that the court's remedy was intended to address, and the remedy left inadequate room as a practical matter for those other actors to check the court's power. Third, such decisions should be avoided where there is a risk of self-dealing; they also should be bipartisan - especially where the risk of self-dealing cannot be avoided. The stakes of Bush v. Gore included the selection of the figure who would fill any vacancies on the Court for the subsequent four years, and the Court split along customary partisan lines in making its decision. In these circumstances the Court should not have ventured into extralegalism if it was unable to rally more than five votes to do so - and particularly THOSE five votes. In its favor, it can be said that the remedial decision was a limited strike; it did not create a precedent that is likely to set a bad example for the Court or for other courts, or against which public opposition will be able to accumulate.

I conclude that in light of these considerations, the Court's remedial decision in Bush v. Gore was ill-taken if understood as an exercise in well-intentioned lawlessness, or as a study in a judicial pragmatism that subordinates fidelity to doctrine to practical considerations. The prudential constraints that can serve as substitutes for doctrine were not observed.