A Dishonorable Anniversary: Bush v. Gore

On its tenth anniversary, Jeffrey Toobin reflects at The New Yorker on the legacy of Bush v. Gore.

Jeffrey Toobin, author of The Nine: Inside the...
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Momentous Supreme Court cases tend to move quickly into the slipstream of the Court’s history. In the first ten years after Brown v. Board of Education, the 1954 decision that ended the doctrine of separate but equal in public education, the Justices cited the case more than twenty-five times. In the ten years after Roe v. Wade, the abortion-rights decision of 1973, there were more than sixty-five references to that landmark. This month marks ten years since the Court, by a vote of five-to-four, terminated the election of 2000 and delivered the Presidency to George W. Bush. Over that decade, the Justices have provided a verdict of sorts on Bush v. Gore by the number of times they have cited it: zero.

Toobin goes on to remind us what made the decision so judicially indefensible.

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. 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 Supreme Court stepped into the case even though the Florida Supreme Court had been interpreting Florida law; the majority found a violation of the rights of George W. Bush, a white man, to equal protection when these same Justices were becoming ever more stingy in finding violations of the rights of African-Americans; and the Court stopped the recount even before it was completed, and before the Florida courts had a chance to iron out any problems—a classic example of judicial activism, not judicial restraint, by the majority….
[T]he case also represents a revealing prologue to what the Supreme Court has since become. As in Bush v. Gore, nominally conservative Justices no longer operate by the rules of traditional judicial conservatism.

From continuing, politically convenient reversals of their belief in states’ rights and application of the equal protection clause to a philosophically altered will to judicial activism in overturning the legislative branch, the Court’s future course, Toobin argues, was presaged by Bush v. Gore.

Toobin does not naively protest the political nature of the Court, but, instead, the partisan role.

Many of the issues before the Supreme Court combine law and politics in ways that are impossible to separate. It is, moreover, unreasonable to expect the Justices to operate in a world hermetically cut off from the gritty motives of Democrats and Republicans. 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.

Justice Scalia, a member of the majority in the case, according to Toobin regularly tells people who challenge him on the decision to “get over it.” Says Jonthan Chait,

I think the Republican justices who decided Bush v. Gore, while justifiying it to themselves as necessary to save the country, understood at some level that it was a highly partisan exercise in judicial activism. You don’t angrily tell people to get over a decision you’re proud of.

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