In light of some of the comments to this post, I should clarify what I meant when I said that Bush’s election was inevitable by the time Bush v. Gore was decided. There are two points, I think, we can all agree on. The first is that Bush v. Gore was a legal abomination that permanently disgraces the record of every judge who joined it. The second is that a clear majority of Florida voters intended to vote for Al Gore, and a rational recount that could address both undervotes and overvotes would almost certainly have determined this fact.
So far, we agree. The problem is that (contrary to what the commenters seem to believe) is that these two points don’t contradict my premise:
- Gore would have won a fair recount, but whether he would have won the recount that would have been conducted had Bush v. Gore been correctly decided is another matter. It’s inherently unknowable, but as far as I can tell the best evidence is that Bush probably would have retained his lead, given the recount that was actually taking place.
- But let’s say for the sake of argument that Gore would win the recount ordered by the Florida courts. The Republicans made it clear that they would not recognize the legitimacy of any count that went against Bush, and they controlled the Florida legislature. Even had Gore won, Florida would have have had two sets of electors sent to the electoral college.
- And given a disputed election, the dispute would have been resolved by the Republican controlled House of Representatives. Even if you have a lot more respect for the Fraud Caucus than I do, you can’t seriously think that the outcome is in significant question.
So, by the time of the Supreme Court’s lawless intervention, Bush was going to become President one way or another. Does this mean that the Supreme Court’s decision didn’t matter? No–the Court certainly legitimized Bush’s election–a transparently political appointment would have made the anti-democratic circumstances of Bush assuming office much more publicly apparent. And while we can’t know, this could plausibly have affected many aspects of Bush’s term in office, including his re-election. But in terms of Bush actually assuming power per se, a variety of factors–Ralph Nader, the purging of the voting rolls, election laws that undercount votes in poor districts, bad ballot designs, the fecklessness of the Democrats who hauled Warren Christopher out of a cryogenic chamber somewhere to act as a sponge in a knife fight–were considerably more important. As is often the case, the Supreme Court’s intervention is more important for what it symbolizes than for its actual causal impact.