Free states or red states

• Online Access: http://hdl.handle.net/2047/d20002556

Professor Gardner’s wide-ranging essay, Forcing States to be Free: the Emerging Constitutional Guarantee of Radical Democracy is in the best tradition of American legal scholarship. Gardner finds a common narrative in recent U.S. Supreme Court decisions involving the seemingly disparate doctrinal areas of free speech law, equal protection constraints on voting district lines, and election law. He then proceeds to criticize the Court’s embarrassing performance in Bush v. Palm Beach County Canvassing Board, and its follow-up Bush v. Gore, not as a sui generis effort to manipulate political outcomes, but instead as a part of the mistaken trend he has identified. Finally, applying his analysis to a problem that arose surprisingly often in the 2002 election, Gardner concludes that the Constitution will seldom, if ever, require federal courts to interfere with a state’s decision concerning late substitution of candidates on ballots for federal office. It is hard not to admire Gardner’s effort to credit the Bush v. Palm Beach Court for sincerity, even as he argues convincingly that the Court has taken a wrong turn. And, the issues Gardner raises are provocative and should spark reaction beyond the fine commentary contributed by Professors Richard Pildes, Burt Neuborne, and Nathaniel Persily in this issue of the Connecticut Law Review. From my vantage point, however, three points mar Professor Gardner’s otherwise insightful analysis and prevent him from persuading us that he presents the right way to think about recent judicial intervention in political cases. First, I am troubled by the complexity and ultimate instability within Professor Gardner’s distinction between exclusions from politics (for which Gardner demands redress in the name of America’s commitment to “radical egalitarianism”) and limits within politics (which Gardner argues the contemporary court has mistakenly invalidated in the name of “radical democracy”). Second, I believe the trend Gardner claims to have identified is somewhat amorphous and more importantly is inconsistent with the Court’s direction in other important areas of law. I thus have grave reason to doubt that the vision of radical democracy is motivating the Court as it confronts the cases Gardner discusses. Finally, Gardner’s discussion of the U.S. Supreme Court cases that propelled George W. Bush into the White House leaves me unsure of his precise ground for disagreement with these cases and dissatisfied with his explanation that these cases are part of a trend toward radical democracy or any other replicable principle. I shall consider each of these points in turn, closing with a brief comment on how the cases involving candidate substitutions just prior to election day help us to better understand a small part of the significance of Bush v. Gore.