Turning Rehnquist’s concurring opinion in Bush v. Gore into a consensus majority standard

During oral argument in Moore v. Harper today, one could be forgiven to forget that Chief Justice William Rehnquist passed away nearly two decades ago and is not currently sitting on the court. He was invoked more than a dozen times. His concurring opinion in Bush v. Gore, an opinion much maligned in the bulk of academic commentary on the topic and untouched by the Supreme Court for many years, seemed to attract the attention of the Court as a “middle way.”

There’s a lot to unpack from this development alone.

First, this was not a position advanced by petitioners in their primary position (a “maximalist” standard, that there can be no substantive constraint on the state legislature) or their fallback position (a version of the “clear statement” rule), both of which were coolly received by most (though not all) justices.

Don Verrilli articulated the position as follows: “And we think the standard is that you’d ask whether the state decision is such a sharp departure from the state’s ordinary modes of constitutional interpretation that it lacks any fair and substantial basis in state law.” (Neal Katyal and Solicitor General Prelogar offered less of a black letter law rule, Katyal using “sky-high” deference, and Prelogar “not just about thinking that the state court might have gotten it wrong or even very wrong but rather trying to identify the narrow circumstances where the Court can’t properly be understood to be conducting judicial review in the first place. It’s not acting like a court, because that is the kind of thing that would then seize the legislatures’ policymaking power and be understood to transgress the Elections Clause.” For convenience I’ll use the Verrilli standard, as it was the most clear articulation.)

I would call this the “narrow standard.” But even here, there’s a “narrow-plus” standard, a “narrow” standard, and a “narrow-minus” standard.

A. Let me dispense of the “narrow-minus” standard. Verrilli’s position is not as deferential at the one suggested by the Conference of Chief Justices in their brief. That standard in the brief was: “If a state court has used the interpretive and decision making tools traditionally used by judicial officers to reach judgments under state election laws, it cannot be said that the court has trenched on the state legislature’s prerogatives under the Elections Clause. And where a state court has used such traditional tools, a federal court should let state court decisions reviewing state election laws stand unless there exists no plausibly defensible basis for the court’s determination and the decision infringes a clear federal interest.” (Emphasis added.)

Setting aside the distinction between, say, “sharp departure” and “fair and substantial basis,” and “no plausibly defensible basis,” the CCJ brief includes a requirement of a “clear federal interest.” This is an essential component of cases like Indiana ex rel. Anderson v. Brand (vindicating the Contracts Clause of the Constitution) and Stop the Beach (vindicating the Takings Clause of the Constitution). It becomes much harder to articulate the “clear federal interest” in the Elections Clause more generally. And a reason the CCJ brief wanted something that narrow.

B. So that leaves the Verrilli position (the “narrow standard”) and another, the “narrow-plus” standard, which Justice Alito floated about. Alito pressed Verrilli, “Is your standard a standard that can be flunked?” That is, Alito’s sense was that this standard was an illusory one for any challenger (although, as I just noted, probably less illusory than the narrow-minus standard!). Alito continued, “I think the worst thing we could do, although it might be attractive for some reasons, is to say, well, there is a limit but . . . it’s one that in practice can never be exceeded, so we have a standard but it’s just, you know, it doesn’t mean anything.” Verrilli pointed back that it was “rare,” such as (lightly edited), “I think a naked declaration that an act of a legislature under a free and fair Elections Clause is unfair, without any grounding in history or precedent or sound analysis of a kind that is appropriate under that state’s mode of interpretation, I think you could envision that possibility happening.”

Alito’s “narrow-plus” standard would graft on some other provisions, such as (lightly edited), “What grounding in North Carolina precedent was there for this decision? My understanding is that the most relevant decision suggests that the North Carolina constitution doesn’t address political gerrymandering.” Or, “Were there prior decisions of the North Carolina Supreme Court that step by step led to this conclusion that the free elections clause prohibits political gerrymandering?”

Alito offers what one might describe as “guideposts” (to borrow his phrase from Brnovich) that could be used to identify whether there is a “fair and substantial basis” in the decision. These guideposts, I think, are designed to give some “teeth” to the narrow standard.

It’s possible, of course, that the “narrow-plus” and the “narrow” standards are really just two sides of the same coin. And it’s possible that there’s simply a divergence of opinion on the Court about how to apply a narrow standard to the facts of this case. (Verrilli and Alito go back and forth with how much the North Carolina Supreme Court appeared to deviate from its ordinary practice.) But I think this is where most of the battle will be.

Second, I was a little–but not very–surprised to see all three attorneys on the respondents’ side retreat to concede a version of this doctrine. As I mentioned before, even staunch opponents of the petitioners’ broad position concede there’s some role for the court to play here.

And while parties may disagree about whether that’s happening because of Rehnquist’s opinion in Bush v. Gore, it has been the anchoring point for these discussions.

Third, the specific framing of Rehnquist’s opinion in Bush v. Gore garnered a lot of attention. I’ll focus on two things.

A. Justice Kavanaugh suggested, maybe not so differently from Verrilli’s position, “Chief Justice Rehnquist’s decision in Bush v. Gore, where he seemed to acknowledge that state courts would have a role interpreting state law and that federal court review of that should be, in his words, deferential and simply should be a check to make sure that the state court had not significantly departed from state law.” Elsewhere, quoting the briefs, “a check to prevent state court judicial adventurism I think was your phrase or to ensure that state courts don’t manipulate state law to frustrate federal rights.” He seemed quite interested in this type of language, pressing Katyal on it at some length. Justice Barrett, too, drew upon related point in her questions with Katyal after Kavanaugh. (There’s a lot of statute versus constitution stuff for another post, or another blogger!)

B. Justice Kagan offered the only real pressure on the Rehnquist opinion with some criticisms to Katyal: “Yeah, but you say so it’s sky high, it’s stratospheric, it’s whatever. So, when you look at the Rehnquist concurrence, and it was only a concurrence, so it didn’t really have to pick a single standard, there were actually a lot of different standards floating around in the Rehnquist concurrence, and some of them sound easier to satisfy than others. You know, like, one is like not a fair reading, which doesn’t sound all that difficult. One is absurd, which sounds a lot more difficult.” Kagan does not seem as interested in Kavanaugh’s gloss on the Rehnquist opinion. But she at least seems open to a caricature of the opinion that would make it a very deferential standard.

It may be in the end, of course, that Rehnquist’s opinion is this kind of caricature for the Court to cobble a majority. What it “says” will be given a gloss by the next majority. But it’s hard to say for now.

Fourth, the Due Process issue. Guy and Rick H. have exchanged thoughts on it. But it was interesting to see Katyal push back against Justice Sotomayor’s proposition on Due Process:

MR. KATYAL: . . . I think Bush versus Palm Beach Canvassing Board says it’s got to be the highest standard, higher than Chief Justice Rehnquist’s opinion in Bush versus Gore.

JUSTICE SOTOMAYOR: Well, I –I thought of those cases as basically saying that there was a due –federal due process problem if an interpretation violates due process in some way.

MR. KATYAL: Correct. There’s a novelty concern, particularly in the criminal context, about adequate and independent state grounds, picking up on Justice Alito’s point. Novelty I don’t think applies quite here because we’re not talking about fair warning in the same way as the federal context.

JUSTICE SOTOMAYOR: Exactly, but I always thought of those cases, those extremes being rooted in the federal Constitution’s due process.

MR. KATYAL: It can be in that context. Here, I think it’s rooted in the Elections Clause itself, which was my answer to Justice Thomas.

This exchange drew me back to Justices Scalia and Kennedy (Kennedy was joined by Sotomayor, by the way!) arguing in Stop the Beach whether the Takings Clause or the Due Process Clause was the best spot for the holding of the case (another “fair and substantial basis” opinion). That dispute was largely a fight over substantive due process, but Justice Scalia (in his plurality opinion on this part of the topic) raised three problems, perhaps to consider here: “The first problem with using substantive due process to do the work of the Takings Clause is that we have held it cannot be done. “Where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims.'”. . . The second problem is that we have held for many years (logically or not) that the “liberties” protected by substantive due process do not include economic liberties. . . . Justice Kennedy’s language (“If a judicial decision . . . eliminates an established property right, the judgment could be set aside as a deprivation of property without due process of law”) propels us back to what is referred to (usually deprecatingly) as “the Lochner era.” . . . That is a step of much greater novelty, and much more unpredictable effect, than merely applying the Takings Clause to judicial action. And the third and last problem with using substantive due process is that either (1) it will not do all that the Takings Clause does, or (2) if it does all that the Takings Clause does, it will encounter the same supposed difficulties that Justice Kennedy finds troublesome.”

I don’t know that there will be much resolution for Due Process here (Rick H. rightly points out, a decision grounded in Due Process applies to state elections, too), but it’s worth pointing out that these same disputes have played out in other contexts about the grounding of the source of the standard, and they’re worth reflecting on here.


It was pretty striking, to me, at least, how influential Rehnquist’s opinion was in what might be described as the “middle” of the Court. A version of it, perhaps with language from cases like Stop the Beach, may turn into the standard. Rick H. asks important questions about what next (remand, in which case it may end up moot; or fractured interpretations of what the lower court was doing, are two such outcomes). It’s also worth reflecting about the long-term potential effect that a middle-ground decision may have on litigants in the future. But the focus on, say, “significantly depart” or related tests suggests some likelihood of consensus around such a standard. Rehnquist’s concurrence may become the standard rather than the outlier.

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