Courts and Election 2002: Cause and Effect?

After the Supreme Court made George W. Bush president about two years ago, in a narrow 5-4 decision, some predicted a backlash by voters in 2002. To the contrary, last Tuesday’s election was a stunning victory for a conservative judiciary.

Tuesday’s election outcomes ensure that two, and probably three, Supreme Court Justices will resign with Republicans controlling both the White House and the Senate. The issue is no longer whether the Senate will confirm a nomination, but rather whom President Bush will pick.

Chief Justice Rehnquist will almost certainly resign this June. As a key member of the slim 5-4 majority on issues ranging from school vouchers to prayer clubs in school, all eyes will be on the choice to replace him. Moreover, President Bush may also seek Senate confirmation to elevate an existing Justice to the Chief Justice position.

We recently saw in New Jersey how crucial judicial appointments are in determining elections. Left-leaning Republican Christine Todd Whitman appointed six out of seven members of the New Jersey Supreme Court, but all held against the recent Republican effort to enforce state election law. Instead, the Court unanimously allowed the Democrats to replace Robert Torricelli with Frank Lautenberg, who then trounced the Republican candidate (Forrester) by a 56%-44% margin. That judicial error could have determined control of the U.S. Senate.

But the enormous judicial influence on elections goes beyond addressing ballot disputes themselves. Courts exercise control over public schools, which in turn influence the average voters. Last June the Court upheld school vouchers in Zelman v. Simmons-Harris, and last week voucher-backing Jeb Bush routed his opponent by 56%-43%. Cause and effect?

Election 2002 Results.

Election 2002 proved, once again, that liberals do well where they control school curriculum, while conservatives win where there is at least some school freedom. For example, California and New Jersey have two of the most liberal school systems in the country, and liberals routed conservatives there despite the opposite national trend. California Democratic incumbent governor Gray Davis has been very unpopular with voters, and could not even muster 50% in the election on Tuesday. Yet he still beat his challenger, Bill Simon, by 6 percentage points, 48%- 42%. In New Jersey, a state that the first President George Bush carried easily in 1988, Lautenberg won by 12%.

Same election, but the opposite results in states where conservatives have at least some freedom in schools: Florida, Georgia and New Hampshire. A week before the election, the leader of the Democratic National Committee declared conservative incumbent Jeb Bush a goner, and many thought that he would lose or barely squeak by. After all, Florida nearly went for Al Gore in the 2000 election. Yet Jeb Bush won in a landslide, in the state now enjoying school choice.

In Georgia, the Democratic governor and U.S. Senator were considered to be guaranteed reelection. Indeed, Georgia had not elected a Republican governor since Reconstruction in 1872. The Democratic incumbent had outspent his little-known Republican challenger by $19 million to $2.5 million as of October 25th. Yet the Republicans ousted many Democratic incumbents including the governor, U.S. Senator (by a wide 53%-46% margin), some U.S. Congressmen and even the leader of the state House of Representatives.

It was the second largest school board in Georgia (Cobb County) that recently allowed choice in science. Specifically, it adopted the following statement: “It is the educational philosophy of the Cobb County School District to provide a broad based curriculum; therefore, the Cobb County School District believes that discussion of disputed views of academic subjects is a necessary element of providing a balanced education, including the study of the origin of the species. … The purpose of this policy is to foster critical thinking among students, to allow academic freedom consistent with legal requirements, to promote tolerance and acceptance of diversity of opinion, and to ensure a posture of neutrality toward religion.”

This phenomenon is not just in the South. New Hampshire enjoys some conservative influence on its schools. The recent U.S. Senate race there pitted a popular liberal governor (Jeanne Shaheen) against a conservative (John Sununu) running for the office for statewide office for the first time. Sununu easily defeated her.

The bottom line is that elections are heavily influenced by school curricula and policies. Last Saturday, the official Democratic response to its abysmal showing was to cite a referendum which passed in Florida, by a 52%-48% margin, requiring smaller class sizes and hence greater public spending. It is symbolic that the electoral loser turns to schools to rebuilt its base for next time.


With more conservative judges now likely to be confirmed, the liberal stranglehold on education is over. School vouchers, prayer clubs, Ten Commandments, and removal of censorship of conservative viewpoints can only increase.

Much work remains to be done. There are still very few conservative textbooks available, for example. But liberal control over the schools through the court system is finally ending. It’s the dawn of a new era.