Just How Bad Was Bush v. Gore?

Jeffrey Toobin says that it was very, very bad

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It's been ten years since the Supreme Court decided Bush v. Gore, and everyone involved--especially the justices themselves--would like it to slip out of our collective memories. Brown v. Board of Education was cited 25 times in the decade after it was decided, Roe v. Wade 65 times. But not a single time has the court cited the ruling that ended the 2000 election. Justice Antonin Scalia frequently urges audiences to just "get over it."

Should we? No, Jeffrey Toobin writes at The New Yorker. Bush v. Gore was no novelty, despite the Court famously declaring it was a single-use decision. "What made the decision in Bush v. Gore so startling was that it was the work of Justices who were considered, to greater or lesser extents, judicial conservatives," Toobin writes. "On many occasions, these Justices had said that they believed in the preëminence of states’ rights, in a narrow conception of the equal-protection clause of the Fourteenth Amendment, and, above all, in judicial restraint. Bush v. Gore violated those principles."

The ruling's legacy of judicial activism is most clear, Toobin writes. "Judicial conservatism was once principally defined as a philosophy of deference to the democratically elected branches of government. But the signature of the Roberts Court has been its willingness, even its eagerness, to overturn the work of legislatures." The Roberts Court has struck down gun control laws across the country, gutted campaign-finance law, and will likely tackle Obama's health care law with "a similar lack of humility." Of course, many court cases are inherently political, Toobin says. "But the least we can expect from these men and women is that at politically charged moments—indeed, especially at those times—they apply the same principles that guide them in everyday cases. This, ultimately, is the tragedy of Bush v. Gore. The case didn’t just scar the Court’s record; it damaged the Court’s honor."

  • I Was There and I Still Can't Believe It, Laurence H. Tribe reminisces for The New York Times. Tribe argued before the court on Gore's behalf, and the justices' questions hinted that the court might stop the recount. "But not even those hints prepared me for the 5-4 late-night decision in which the court announced that equal protection demanded a more uniform approach to counting the ballots — only to add that, having itself run out the clock, it sadly had no choice but to end all the counting that very night (Catch-22!). Left in the dust were the far more compelling equal protection rights of those whose ballots would never be counted at all, many of whom lived in heavily minority counties. ... What I remember most, then, about the night that the court ruled was my realization, after I picked up my jaw from the floor, that although nothing could ever undo the injustice done by Bush v. Gore, not even a decision that devastating can eclipse the cumulative decency that perseverance can achieve."
  • Never Gonna Get Over It, Scott Lemieux writes at Lawyers, Guns and Money. "It’s true that the decision was 'judicial activism' by any standard, but then the tradition of conservative 'judicial restraint' that Toobin cites is just a myth; conservatives, over the history of the Supreme Court, have only shown restraint when greater activism would tend to lead to substantively liberal results (and vice versa.) And even the sudden conservative embrace of an expansive conception of equal protection in vote counting wouldn’t be that unusual or especially problematic if they were willing to actually follow through and take the alleged new principle seriously. But not only, as Toobin notes, did the Court assert that the principle couldn’t be applied to future cases, the principle wasn’t even applied to the case itself. Based on the Court’s own reasoning, the count that gave Bush the presidency was just as defective from an equal protection standpoint as the recount ordered by the Florida courts. And then there’s also the fact that the decision was the end result of a Catch-22 created by the Court itself. "
  • It's Only Gotten Worse Since 2000, Prairie Weather argues. "The Court -- with the unelected president's additions, like Roberts and Alito -- has gone on to dirty its reputation even more. ... As has happened with 'conservatives' in other branches of government and throughout the putative 'right,' we're dealing with people who call themselves 'conservative' and show no awareness of what being a conservative entails. These are reckless, self-serving radicals. We can't expect Supreme Court justices to be perfect in their decisions.  But we can and should expect honorable men and women."
  • Most Americans Were Just Fine with the Decision, Karlyn Bowman notes at The American Enterprise Institute. "The polls conducted ten years ago during the height of the controversy over the Bush v. Gore election in 2000 showed a remarkably resolute public. Most Americans, unlike many in the media, never saw the election aftermath as a constitutional crisis. ... Overall confidence in the Supreme Court did not waver throughout the ordeal, but, in polls taken around the time, Democrats became less confident in the Court and Republicans more so. Although around four in ten Americans had doubts about whether Bush legitimately won the election, overwhelming majorities in other questions said they would accept him as the legitimate president once the controversy was resolved."
  • That Was a Pre-9/11 World, Andrew Cohen writes at Politics Daily "The Bush v. Gore world lasted only 274 days, from December 12, 2000, the day the Supreme Court told Florida officials to stop counting ballots, until September 11, 2001, the day the United States suffered its worst terror attack in history. ... Much of the rancor generated from the Florida fight ebbed away amid a flood tide of patriotism and bipartisanship," Cohen writes. A decade ago, there were "dire predictions" that the Supreme Court would "lose prestige and credibility." Did it? "You can argue it both ways and scores of legitimate scholars have gleefully done so. If the Court did lose some credibility, and I think it did, clearly it did not lose enough to generate much of an anti-Court backlash. The Justices are still going strong-- witness their landmark corporate speech case this past January in Citizens United. And so are their critics. Bush v. Gore didn't change the world. The world changed shortly after Bush v. Gore and it's likely never going to change back."
  • Bad Decision, Former Justice John Paul Stevens Says, in an interview with Scott Pelley at ABC News. Stevens definitively said the court should have allowed the recount to continue.