Judging for the Home Crowd
An empirical analysis of Bush v. Palm Beach County Canvassing Board and Bush v. Gore reveals liberal bias on the bench.

By Dan Sutherland & Jim McNeely. The authors are legal scholars with the Center for Equal Opportunity.
March 30, 2001 9:20 a.m.

ost Democrats are determined to consistently argue that the wrong person was declared the winner of the presidential election. Nearly every day another Democratic office holder, spin-doctor, or liberal activist makes the charge. In the past week, NRO has reported shrill comments made by actress Julia Roberts (Bush is "not my president. He will never be my president") and playwright Arthur Miller ("this last, most hallucinatory of elections").

Since the vote recounts in Florida are not producing the results they had hoped for, liberal activists have turned to attacking the legitimacy of the Supreme Court's decision in Bush v. Gore, the case that ended the 2000 presidential campaign. They argue that the five Justices in the majority simply wanted to make sure that the candidate they preferred won the case. Last week, Gore attorney Ron Klain wrote an Op-Ed in the Washington Post titled "How Democrats Can Use Bush v. Gore."

U.S. Supreme Court Justice Ruth Bader Ginsburg added her voice to the chorus, although in a slightly more cerebral context. Justice Ginsburg argued in a recent speech that the majority opinion in Bush v. Gore shows "how important — and difficult — it is for judges to do what is legally right, no matter what 'the home crowd' wants." In her view, the dissenters in Bush v. Gore did what was "legally right," while her conservative colleagues gave in to the wishes of their "home crowd." But a careful empirical analysis of the two presidential-election cases heard by the Supreme Court in December raises serious questions about which block of justices is more susceptible to the "home-crowd" criticism.

First, our methodology: Many legal scholars and politicians have given their opinions on the Court's written decisions. We decided to take a fresh look at Bush v. Palm Beach County Canvassing Board and Bush v. Gore, the two cases the Supreme Court heard in the month after the votes were cast in Florida. We focused first on the oral arguments. If Justice Ginsburg's allegation of a home-crowd advantage were true, we reasoned that we should be able to spot the bias in the Justices' own words. Second, we developed a more objective — even quantitative — analysis of the Bush-Gore litigation.

We analyzed each question put to the attorneys for Bush and Gore and looked to see who asked it. We listed each of the questions as either coming from the "conservative five" — Rehnquist, O'Connor, Scalia, Kennedy, and Thomas — or the "liberal four" — Stevens, Souter, Ginsburg and Breyer. (Of course, these are awkward labels, but they adequately define how the two blocks of Justices often line up). Next we put each question into a category, either "skeptical" or "supportive." A "skeptical" question pushed the attorney, probed his position, and tested his arguments. A "supportive" question helped a lawyer, either by reminding him of good arguments he had forgotten or by rescuing him from the questioning of a hostile justice.

What we found was astounding.

The results. We found that the Court asked the lawyers for Bush and Gore a total of 250 questions in 150 minutes of oral argument — more than one and a half per minute. It was, as the Court-watchers like to say, a "hot" Court.

Ted Olson, President Bush's attorney, faced a steady onslaught of difficult questions. The justices asked him 110 skeptical questions, and only six that we could categorize as supportive. In other words, the justices constantly expressed doubts about his position, and pushed him to explain it in further detail. The liberal four asked Mr. Olson 78 questions that we categorized as skeptical — and not a single supportive question.

The pattern of questioning changed dramatically, however, whenever Mr. Gore's attorneys took the podium. The conservative five continued to pepper the attorneys with difficult questions. They asked Laurence Tribe and David Boies, the attorneys for Mr. Gore, a total of 95 skeptical questions (and one supportive question). By contrast, the liberal four completely changed tack. Of the 38 questions they asked Mr. Gore's attorneys, 33 were supportive. All of the skeptical questions came in the second oral argument, when justices Souter and Breyer asked about the obvious equal-protection-clause problems. Except for this one short segment of one of the arguments, the liberal four never asked Vice President Gore's attorneys a single difficult question. Moreover, they asked more than 15 times as many skeptical questions to Mr. Olson as they did to Messrs. Tribe and Boies (78 to 5).

The machinations the liberal 4 undertook to support Mr. Gore's attorneys were remarkable. In one sequence of Mr. Tribe's oral argument, he was reduced to giving responses such as, "Right," "I fully accept that, Justice Souter," "That's right," and "I think that makes sense." After Justice Scalia started to pin Mr. Tribe down on a particularly important point, Justice Ginsburg interrupted. Mr. Tribe's next three answers started, "Absolutely," "That's right," and "Exactly."

Republicans have largely ignored the continuing debates and charges about Florida, focusing instead on the challenges of governing. There may be a price to be paid, though, by disregarding these steady attacks. When Clarence Thomas was confirmed to the Supreme Court, a clear majority of Americans believed that he was telling the truth. But over the next year, his opponents continued to press Anita Hill's story while conservatives said little. Polls showed that the percentage of people who believed Justice Thomas then fell substantially.

Whenever the topic turns to the Supreme Court's role in election 2000, Republicans would be wise to counter the specious argument that the conservative five were politically biased. The overwhelming evidence demonstrates that it was the liberal block of Justices that showed a double standard. Justice Ginsburg may have been correct — some of the Justices did appear to be paying close attention to what their "home crowd" expected.