Under the Rule of Law, Fairness is Irrelevant
Comment on 12/4/00 remand of Bush-Gore case by US Supreme
Court to Florida Supreme Court
Florida's Supreme Court now has a second chance. To mollify the United
States Supreme Court, Florida's justices must clarify that their decision
to extend the deadline for recounting presidential election ballots had
nothing to do with justice, or fairness, or trying to discern the will
of the people. They didn't really mean that fluff about using their "equitable
powers," they'll have to say in rewrite; their only concern was applying
traditional rules of statutory interpretation. A properly revised equity-free
opinion will likely satisfy the U.S. Supremes, most of whom would gladly
duck the issue and leave the inevitable flak to Florida.
Media commentary on the many Bush vs. Gore cases has emphasized traditional
American political distinctions. Unlike most nations, here in the U. S.
we have a federal system, within which separate state and federal courts
have different but overlapping jurisdictions. And here, too, we maintain
a separation of powers, with the legislative, executive, and judicial
branches of government each restricted to its own assigned place. At times
like this it's clear that interactions among the two judicial systems
and three branches of government can be jarring. The post-election dispute
has already generated enough material to keep law professors and social
studies teachers busy for years to come.
Despite the non-stop analysis, however, too little has been made of another
crucial distinction: that between law and equity. The interplay between
the legal and the equitable forms the backdrop to the give-and-take between
lawyers and justices at the December 1st Supreme Court hearing, the Court's
December 4th remand back to Florida, and, no doubt, the in-chambers discussion
among the Florida justices as they reconceptualize their decision as one
based purely on the law.
Loosely speaking, equity is an interest in fairness, or justice, or doing
the right thing despite legal technicalities. Every advanced legal system
recognizes that the strict rule of law can become overly technical, rigid,
out of touch with human needs. Equity courts developed under the common
law in England as a mechanism to sidestep judges so blinded by the pure
brilliance of supposedly logical analysis that they refused to see individual
hardship. In the U. S., most equity courts merged back into law courts,
so that every judge has both powers of law and powers of equity--the power
to follow the law, and the power under certain circumstances to opt for
Many judges, uncomfortable in equity's uncharted waters, cling tightly
to law's certainty. But some do depart from legal technicalities, from
strict logic and rigid precedent, from narrow categorization and mindless
generalization. They aim to relieve misery, to prevent injustice, to restore
balance. For their troubles they're often vilified, as was Chief Justice
Earl Warren, whose preference for justice-seeking rather than legal minutiae
made him hero to some but villain to others.
Where Florida's Supreme Court went wrong was openly invoking, in its
written opinion, "the equitable powers of this court to fashion a remedy."
That's a no-no. Explicit reference to equity is a sign that the law may
not be on your side. That's especially true in the Florida case, where
the court should have known not to base its interpretation of conflicting
statutes on Florida's constitution, which is irrelevant to the election
of a president. All that constitution-related rhetoric about discerning
the will of the voters, it turns out, is legally beside the point.
It should be easy for the Florida court to claim, in its revised opinion,
that it's relying only on traditional canons of statutory construction,
not on equity. That should satisfy the U. S. Supremes and let them retreat
out of the public glare.
The irony remains, however. The nation's pretense about the value of
every vote to the contrary, trying to divine the will of the people (or
at least the will of those who voted) really is less important to the
legal system than melding together conflicting statutes in a technically
acceptable manner. As the Bush forces have maintained since Election Day,
the rule of law prefers finality to accuracy.
Regardless of how the many related cases are decided, and regardless
of who becomes the next president, the final reassuring message will be
that the system works. Even though precedents and canons of construction
and legal principles support both sides of the case, the loser will bow
more or less gracefully to the will of the courts. The inevitable result
will be much punditry about the virtues of the rule of law and the joys
of legitimacy. Whether that legitimacy is deserved in a system for which
justice is secondary should become the topic of more extended public discussion
than has yet taken place.