Anyone undecided on Kavanaugh ought to take a harder look at the last time the Supreme Court addressed the fate of the presidency. Bush v. Gore did not involve justices settling the future of the man who had nominated them. Even so, it did not go well. Kavanaugh’s role in that case does him no credit, and he should be asked about it in his hearings.
The fact that a lawyer would advance a legal position congenial to his client and his party is neither a surprise nor a scandal. Normally, though, as part of their craft, judges unfold their views gradually and coherently, in ways that honor the law’s norms around consistency and precedent. In Bush v. Gore, that did not happen. At the urging of campaign lawyers like Kavanaugh, five conservative judges rejected bedrock conservative legal principles to secure the presidency for a Republican. That was a surprise, and it should remain a scandal.
There was no reason for the Court to get involved in the recount. The Constitution gives the power over presidential vote counts to each state, as directed by its legislature. Florida’s legislature had written recount laws. Bush and Gore disputed what they meant. As happens every day, a state’s courts were interpreting the state’s laws to resolve a dispute. The Supreme Court plays no role in such cases.
The Court intervened on the theory that the Florida court had usurped the role of the state legislature. This was an extraordinary foray into a state’s governmental processes. The most recent precedents came from the era of Jim Crow, when Southern state courts twisted their own laws to railroad African Americans, implicating bedrock rights to equality and due process. There was nothing comparable here. Most astonishing, the intervention came from conservatives who typically defended state sovereignty.
The groundlessness of the Court’s initial position was betrayed by its final opinion, which offered an entirely different rationale. The Court declared that Florida violated the Constitution’s guarantee of equal protection by counting votes in different ways in different counties, and that the only remedy was to stop the recount altogether. But states have often employed disparate vote-counting procedures. Here, “originalists” such as Justice Antonin Scalia declared a never-before-seen right to fixed recount standards. Where prior applications of equal protection to voting had protected the power of each person’s vote, the majority here stopped the vote count altogether, declaring that Florida’s courts had run out of time (due to the Court’s intervention in the first place).
When Bush v. Gore was decided, a handful of brave conservatives denounced the ruling’s opportunism. Had that reaction been more widespread, the backlash might have taught the Court a lesson in modesty. Work on the case by Washington lawyers like Kavanaugh might have become the dubious distinction it deserves to be. But conservatives closed ranks and Bush won reelection, fair and square.