Bush v. Gore and the French Revolution: A Tentative List of Some Early Lessons

I INTRODUCTION Simon Schama begins his magisterial book on the FRENCH REVOLUTION, Citizens, by relating the reply of Chinese Premier Zhou En-lai to a question about the significance of those 1789 events: "It's too soon to tell." (1) One suspects that Zhou's emphasis on the importance of a long-term perspective is especially jolting to Americans, who inhabit a culture that generally waits until no later than Monday to engage in their analysis of weekend events. I am confident, for example, that many (perhaps most) readers remember watching television newscasts on the evening of December 12, 2000, which featured, toward the close of day, images of couriers for the various networks racing down the Supreme Court steps, followed within minutes by immediate analysis of the meaning of the Court's opinion in Bush v. Gore. (2) More recently, the truly awful events of September 11, 2001, which have cast a broad shadow over all of our lives, generated hours upon hours of experts not only opining that our lives will be fundamentally tr ansformed, which I am sure is the case, but also, and more problematically, specifying the transformations that will shape our future. It is good, therefore, to be reminded of the importance of adopting a longer perspective and to realize that it is difficult to know, with any confidence, what the importance and durable consequences of any given event actually may be. One need not be a full-fledged historicist to recognize that any full description or assessment of event X ultimately depends on knowing future events, which will inevitably throw a different light on the past; because of this change in lighting, we see details of earlier events that had earlier seemed relatively unimportant, just as previously high-lit actors fade into insignificance to be replaced by what we mistakenly thought were bit players or even simply extras. And, as Chekhov taught us, an apparently unimportant gun over the mantle that we perceive only as part of the background scenery when the curtain rises may eventually turn out to generate catastrophic consequences by the conclusion of the play. Consider in this context, for example, what one might want to say, in a symposium commemorating the fortieth anniversary of Baker v. Carr, (3) the case in which the Supreme Court overruled a fifteen-year-old precedent (4) and held, contrary to the earlier case, that legislative districting did in fact present an issue capable of judicial resolution under the Fourteenth Amendment. (5) Had that symposium been scheduled for October 2000, I dare say that it would never have occurred to me or to any other participant to address the possibility that the ultimate consequence of Baker and of the "one person-one vote" doctrine adopted two years later in Reynolds v. Sims (6) and its progeny would be the empowerment of the Supreme Court to take charge of a national presidential election and, in effect, to bring the election to a halt by declaring the winner. No one today, however, can be unaware of the "presidential-election strand" of doctrine. This means that any overall assessment of the significance of the Court's d ecision to enter what Justice Frankfurter in Colegrove v. Green so memorably called the "political thicket" (7) of legislative apportionment must surely include the role it played in (ostensibly) legitimizing the decision almost four decades later in Bush v. Gore. It is not surprising, then, that Schama seems to endorse Zhou's caution by writing that "[t]wo hundred years may still be too soon" to offer any confident analysis of an historical event. (8) More surprising, perhaps is Schama's interposition of the words "[or] possibly, too late" to tell. (9) We are left, then, with the rueful knowledge not only that we can never in fact tell what is the truly right time to offer an analysis of a complex event, but also that any given moment in time is likely to be "wrong" from at least one plausible perspective. …