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Nope, Not Over It

[ 27 ] November 29, 2010 |

Jeffrey Toobin on the 10th anniversary of one of the worst Supreme Court decisions of all time:

[M]omentous 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.

I actually think the decision was even worse that Toobin makes it sound. 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.) If that was the only issue, it wouldn’t be a big deal; accusations of judicial activism just end in a poetic justice as fairness feedback loop. 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.

So, yeah, I’m never going to be over it.

…more on the Rehnquist concurrence here.

Comments (27)

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  1. Captain Splendid says:

    Imma let you finish!

    On a more serious note, time sure does fly. Except that I honestly thought by this point things would have baselined a little more than they have.

  2. WaltzWaltWalzer says:

    Worthwhile remembering that in Doug Forrester’s appeal in 2002 to have Frank Lautenberg barred from running in Toricelli’s stead, his attorneys cited Bush v. Gore, and the court (the exact same members who decided Bush v. Gore) explicitly rejected the citation.
    Tom the Dancing Bug was priceless on Scalia’s reasoning…
    http://www.gocomics.com/tomthedancingbug/2000/12/30/
    http://www.gocomics.com/tomthedancingbug/2000/12/23/

  3. Davis says:

    I take some comfort in that Scalia will go down in history as a political hack and not the legal scholar he thinks he is. Also an arrogant prick.

  4. Anonny says:

    In retrospect, Bush v. Gore did establish a precedent, perhaps the biggest since Marbury v. Madison.

    At the time I think the Scalia 5 knew that the decision was legally and logically bankrupt and figured that they were going to get hammered for it in the media and by the Democrats. But they also figured that they would accept that price in order to get their guy into the White House. The fact that they refused to allow the decision to serve as a precedent and their failure to sign it were the giveaways.

    However, to their great surprise the Democrats meekly accepted it and the U.S news media largely applauded it.

    As a result, the Scalia 5, and now the Scalia 5 version 2.0, have become increasingly brazen in usng their 5-4 majority to re-write laws and the Consitution to match their ideology, regardless of what the law/Constitution actually say. The failure of the news media and the opposition to challenge Bush v. Gore opened the doors to Citizens United, the DC gun law ruling, and the dramatic erosion of 1st, 4th, 5th, and 6th amendment rights.

    • Joe says:

      The fact that your list “rewrites” is a matter of constitutional debate. The DC gun law ruling, e.g., was supported by Sen. Feingold and various liberals. The erosion (accepting as I do that it has occurred) of defendant rights didn’t start in 2001. And, if anything, MORE 1A rights have been protected as of late, though a few exceptions can be found.

      • Joe says:

        If you mean establishment clause matters, okay, but again, the ruling isn’t the reason vouchers to religious schools, e.g., were upheld. The path was set before then.

        BTW, Justice Stevens had a good take on this on 60 Minutes — when he heard about the request for a stay, he figured, yeah we will have to come in for that, but since there’s no case, it would take about 10min.

      • Plop says:

        I’m genuinely curious: which first amendment rights have been expanded by the Roberts Court? (Let’s agree to set aside political speech cases that increase the amount of money that can be donated).

        If you meant only that there have been Roberts Court decisions that ruled in favor of a party based on first amendment rights, then that’s setting a fairly low bar for the Court to clear. Are there any cases where the Court expanded 1A rights to a new area, or made it easier for parties to claim 1A rights?

        • Anonny says:

          I was referring to the entire span of cases from 2000 onward in which the Scalia 5, both the Rehnquist version 1.0 and the Roberts version 2.0, decided cases by 5-4 majorities. Not just the Roberts court.

          • Plop says:

            Yeah, my mistake. “More 1A rights have been protected as of late” put me in mind of decisions from the last five years. My question still stands for post-2000 decisions.

            • Joe says:

              Given the parameters, I was thinking since 2001.

              We had the virtual porn case (speech protective), the animal porn case (speech protective), the campaign funding cases (obviously debatable, but more speech was protected), the religious rights of prisons upheld, right of a small religious group to use hoasca, to the degree intimate association is a 1A issue there is Lawrence v. Texas and probably others.

              There has been a few notable Establishment Clause losses, though the Ten Commandment cases were split. But, again, the momentum was there before hand, and Bush v. Gore wasn’t the reason for that sort of thing.

              So again I don’t see how any of this is “as result” of anything except that it furthered an existing sentiment of accepting what the Supreme Court does, which had good and bad results in the last decade.

      • Anonny says:

        The DC gun law ruling overturned extensive precedent and applied the 2nd amendment to local governments using some unusual judicial theory. This was the sort of overreach that probably would not have happened in the 1990s but is happening a lot under the post-Bush v. Gore 5-4 majority.

        Probably the worst offenses, though, are those applying to executive powers and the rights under the 4th, 5th, and 6th amendments, not to mention habeas corpus. I’m not sure how much of the 4th is left, except that the Scalia 5 did fall short of allowing remote scans of your house for drugs.

        • timb says:

          They will eliminate the exclusionary rule soon enough and, thus, with their indifference to eliminating the expansion of the “state secrets” doctrine and their own continual expansion of exceptions to the 4th, it will seem to later generations like the third seems now to us.

          I can just see my grandchildren, lined up at a “terrorist checkpoint random traffic stop” and discussing how weird it was when the government attempted to quarter soldiers in your home or let you travel without your internal travel visas….

        • Joe says:

          What “extensive precedent” are we talking about? The issue of lawful citizens owning handguns and other common firearms was addressed once by a federal court in the 1980s to my knowledge. Again, many liberals support Heller. It’s not really a great example. And, it had to do with membership, Alito particularly, not Bush v. Gore.

          Again, the Burger and Rehnquist Courts cut back criminal rights in many ways. Why you think Bush v. Gore suddenly changed anything is unclear.

          Meanwhile, I guess, we have to put aside Lawrence v. Texas, the Gitmo cases, restrictions on the death penalty, restrictions on use of heat imaging and searches of school children,

    • L2P says:

      What were the “non-meek” Democratic alternatives? Was Gore supposed to refuse to leave the White House and just declare himself president

      This is what happens when narrow majorities reflect radical opinions instead of the moderate middle. You get radical results. It’s hard to Bush v. Gore as anything but another link in a long chain.

      • Anonny says:

        The expectation was that the Democrats would have done what the Republicans would have done had the situation been reversed. Namely, organized protests, sent Democratic leaders onto cable and broadcast TV shows screaming about the injustice, openly challenging the Electoral Vote count in Congress in January.

        Remember that in the week before the election many pundits were predicting that Bush would win the popular vote but Gore win the electoral vote. Even the so-called liberal Chris Matthews penned a column about this possibility and smearing Gore in advance for accepting such a victory. The Republican machine had already prepared a protest campaign for such an eventuality, and you can find references to it in the newspapers published the days before the election.

        The Republicans expected the Democrats to mount such a battle as they would have themselves — and did, during the recount. Not that the Democrats would have changed the outcome, but they would have set the tone moving forward. But, except for a few columns and a couple of books by Vidal and Derschowitz the Democrats were silent. Even Gore, in his role as VP overruled Congressional attempts to challenge the electoral vote count that January.

  5. Marek says:

    The corpse has been rotting for ten years now. Amazing how easy it is to ignore.

  6. wengler says:

    Two of them are now gone, but there is still plenty of opportunity to impeach and remove and the other three.

    I guess I’ll have to pretend that this option is still more extreme than the Citizens United case.

  7. howard says:

    hey, i’m still not over the brazen impeachment ploy (and not gonna be), an even older matter we are never to discuss….

  8. john says:

    While I agree that the opinion is a legal shambles, I can’t get all that worked up about it. Had Gore won every legal proceeding and gotten the recount his way, Bush still would have won.

    Now, there are scenarios where Gore would have won, applying this or that standard for counting votes, if this or that legal action had gone the other way, etc. But none of the theories advanced by Gore would actually have delivered him the election.

    I agree that the Court did itself severe damage, and certainly “the will of the voters” vaguely defined leaned Gore–count out Nader or the wrongly-vast Buchanan votes and Gore wins, or do a “perfect recount” like what NORC did (one never advocated by Gore) and Gore wins.

    But none of the “Gore wins” scenarios were on the table at the time. Thus I don’t see how you can get mad about a decision that didn’t actually change the outcome, except on its pure legal merits, and while those arguments are interesting I don’t think they’re why the Internet still gets worked up in a lather about the issue.

    • Scott Lemieux says:

      I agree that Bush was going to become president no matter what; the Court legitimated Bush’s presidency but it didn’t install him per se. What make the opinion awful isn’t so much that it elected Bush as that the opinion was lawless.

      • Jesus McQueen says:

        Really? Do we know for certain that the statewide manual recount stayed by SCOTUS would have decisively clinched it for Bush? Or am I misunderstanding your comment?

        • Scott Lemieux says:

          Bush probably would have won that limited recount, but more to the point both of the relevant decision-making bodies were controlled by Bush supporters. He was going to win one way or another; the question is how messy.

    • Joe says:

      The judge involved in the count that was stopped noted that he was willing to count overvotes which might not have been “theories advanced by Gore” in particular, but once a lawsuit is started, it sometimes goes places not expected.

      For instance, an original lawyer (James Bopp) in Citizens United has noted that Ted Olson had a different strategy than his team and in the end the actual litigant didn’t really get much out of it.

      And, is the fact Gore very well would have lost anyway the only reason to be pissed? “Legal merits” when dealing with the Supreme Court does seem a tad relevant. Some care if one branch of the government isn’t just full of shit. But, it also had other implications, including political. There is a system in place when there are disputed elections and if we are just going to let shoddy court rulings decide them, it’s likely to be a problem.

  9. [...] Gonna Get Over It, Scott Lemieux writes at Lawyers, Guns and Money. “It’s true that the decision was ‘judicial [...]

  10. [...] Gonna Get Over It, Scott Lemieux writes at Lawyers, Guns and Money. “It’s true that the decision was ‘judicial [...]

  11. [...] here’s Lawyers, Guns and Money on same: I actually think the decision was even worse that Toobin makes it [...]

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