Today is Yesterday was the 10th Anniversary of the Supreme Court’s disgraceful Bush v. Gore decision. Where exactly the decision ranks among the worst decisions in Supreme Court history depends on what metric you’re using. Certainly, the Supreme Court has issued many, many more immoral rulings throughout its history. But Dred Scott, Plessy, U.S. v. Cruikshank, Hammer v. Dagenhart, et al. were at least based on intelligible constitutional principles — evil principles, but actual principles, in each case shared by a substantial measure (if not an overwhelming majority) of the country’s political elites. One can say the same thing of most of the other Rehnquist and Roberts Court decisions that have generated significant criticism — McCleskey v. Kemp and Parents Involved and Citizens United might have been based on the wrong constitutional principles, but they do rest on actual constitutional principles. Bush v. Gore is different, in that it was essentially lawless all the way down. Not only was the legal “principle” announced in the case flagrantly inconsistent with the past jurisprudence of the majority, even more unforgivably the nominal principle wasn’t even applied to the case itself. What the Supreme Court does is inevitably “political” in a broad sense, but not necessarily in the sense of narrow partisan politics or favoring particular litigants.
For those interested in further expansion on these points, some of my previous posts on the topic:
- It’s hard to overstate just how inconsistent Bush v. Gore was with basic principles of the rule of law.
- Trying to assert that while the majority opinion was terrible the Rehnquist concurrence was reasonable won’t fly.
- Bush v. Gore was not a 7-2 opinion. It was a 5-4 decision. Period.
- While the Florida Supreme Court has been relentlessly smeared by Republicans for a decade, it’s worth noting that the Florida Court consistently used a reasonable interpretation of the law even though it favored Bush in 3 of 5 cases. It was Republicans (and conservative nominal Gore supporters like Pat Caddell and Ann Althouse), not the Florida Supreme Court, that cynically switched between a narrow, hyper-technical reading of the law and a broad “intent of the voter” reading depending on what would favor their candidate.
- The problem with the Court’s intervention wasn’t so much that it installed Bush as that it inappropriately legitimized it.
- Scalia’s protesting-too-much has been nothing if not self-defeating.
- The 2000 election provides many examples of the asymmetric nature of the current partisan conflict between Republicans and Democrats. On the Court, it’s hard to get a better example in Ginsburg acquiescing in the bullying from the Court’s most acerbic writer by removing a (very important) footnote from her dissent.
- [UPDATE]: Pithlord is correct to note in comments that as horrible as Bush v. Gore was, the stay order that preceded it might have been even worse. [See Section 1B of David Straus's essay for a good account.]