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“Wholly Without Merit”: The 10th Anniversary of Bush v. Gore

[ 30 ] December 13, 2010 |

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:

Comments (30)

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  1. howard says:

    the great irony here is that with a better ballot design in palm beach, the court wouldn’t have been involved, which is to say that lieberman did actually win gore the election….

    • Incontinentia Buttocks says:

      Do you have any actual evidence that those would-be Gore voters who voted for Buchanan would have voted for Bush had Gore made a more sensible and/or less Jewish VP pick?

      There’s a big body of psephelogy showing that Vice Presidential candidates almost never make any difference at all in presidential outcomes, so there’s a pretty hefty presumption against your conclusion.

      • howard says:

        ib, i’ll never prove it dispositively, so let’s get that out of the way first.

        still, it is entirely possible to believe (as i do) that in general terms across 100M voters the vice presidential pick has limited-to-zero impact but to also believe that in palm beach in particular, the city with the highest jewish population by percentage outside of israel itself, the selection of joe lieberman did make a difference, and it’s palm beach we’re concerned with here, not 100M voters in general.

        after all, what was the ballot design flaw? it was that voters got confused and wanted to be sure to punch the names of both gore and lieberman on the ballot. this constituted an overvote and as a result was thrown out.

        now, clinton won florida in 1996; obama won florida in 2008. thus, by definition it’s possible for a democrat to win florida without a jew on the ticket, but again, we’re only specifically concerned with palm beach at this point and the behavior of what i recall to be in the neighborhood of 20k voters.

        so really, the question for me is a simple one: is it likely that at the margin, jewish voters who, for the first time in their lives, could vote for a jew on a national ticket might have been extra disposed to come out and vote, particularly elderly jewish voters such as we find in palm beach? and do we see the evidence of such voters in the double-punching of gore and lieberman?

        i can’t prove anything beyond that, but yes, i’m certain it’s true.

        and it still doesn’t mean that vp picks matter in general….

        • Anonymous says:

          Very intelligently and compellingly argued. Yours is the best analysis of the tragedy of the butterfly ballot that I have seen. I think you have threaded the needle. Bravo!

  2. Joe says:

    Probably a bigger day of infamy than the attack on a military target by a country whose key resources were being blockaded in what amounted to acts of war.

  3. wiley says:

    The media was complicit in this. How was it decided that the American people would be devastated by a recount?

  4. Pithlord says:

    However bad Bush v. Gore is (and it is impossible to overstate), the stay decision is even worse, particularly when combined with the remedy discussion of the majority. We can’t let the ballots continue to be counted because if that puts Gore ahead and we rule for Bush, his legitimacy will be tarnished. And we can’t count all the ballots because we ran out of time!

  5. Steve H in SLC says:

    I’m with Pithlord. To me, it has always been about the stay: the single most egregious act of lawlessness ever perpetrated by the Supreme Court.

    In the stay order, five Republicans — who are all about state sovereignty when it comes to every other issue — told a sovereign entity to STOP COUNTING ITS CITIZENS’ VOTES.

    And why? Because the harm to Bush from allowing the count to continue, i.e., questions about the legitimacy of his victory, “clearly outweighed” the harm of allowing the count to continue, even though the clock was running down.

    And then for the majority to use that same December deadline as its justification for essentially calling Bush the winner in its later ruling was just the icing on the cake.

    Uggh. It’s pissing me off all over again.

  6. Although Bush v. Gore resulted in the Bush presidency, a profoundly bad outcome, it seems to me that the real damage it inflicted was that it de-legitimized the courts in the eyes of the public. Although people undoubtedly (correctly) reckoned that the federal courts were political, the outcome in Bush v. Gore was so nakedly outcome-determinative that it became impossible to seriously argue that constitutional jurisprudence was ever conducted in any other way. We are seeing this perception now, in the rulings coming out of the Health Care Reform litigation.

    This erosion of confidence in the ability of governmental institutions is extremely damaging. People are generally okay with their own Congressperson, but mistrust Congress, and in a sense the Presidency is designed to be a lightning rod, but the Courts have traditionally been the branch that was popularly regarded as capable of arriving at the correct solution for the correct reasons. Bush v. Gore spent that coin, and in the ten years that have passed since the Supreme Court has done nothing to restore anyone’s confidence in it.

    • Davis X. Machina says:

      The loss of Court legitimacy is a feature, not a bug.

      The existence of the Scalia Court as a reliable servant of the plutonomy is a recent, and unforeseeable, development. For two generations prior to 2000, the Court couldn’t be counted on to reach ‘correct’ decisions. Nor is the present, reliable, Court’s permanence a given.

      Better, under those circumstances, to have a Court permanently reduced to a joke, than one that could recoil on you some day.

      The same analysis applies to the 1998 impeachment of Clinton. If you can’t guarantee that you’ll be the only one aiming the gun, make sure the gun is only loaded with a flag that says ‘Bang!’

    • hv says:

      Great remarks.

      Additional evidence might include how SC confirmations have also turned into politicized Kabuki.

  7. JP Stormcrow says:

    I’m also with Pith & Steve. And I want the following sentence to be what people remember about Associate Justice Scalia 200 years from now.

    The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.

  8. [...] Scott Lemieux discusses the disgrace that was Bush v. Gore on its 10th anniversary. [...]

  9. JP Stormcrow says:

    I was going to point out George Will’s hacktacular column on this, but when I searched I discovered that Scott has it covered at Tapped. So I won’t mention it … ‘cuz it easily lives down to Will’s usual standards.

    Also, am curious if anyone has read Lance Dehaven-Smith’s The Battle for Florida or has a received opinion on it. It came out a number of years later, but from an interview with the author I heard it sounded like something worth reading (Dehaven-Smith is apparently a knowledgeable observer of Florida politics). However, I’m not willing to spend $75 (or $35 used) for it on that alone and it is not available at libraries I have access to.

  10. [...] somehow the self-congratulatory formalism that revels in people being sent to the death chamber is particularly disgusting in the wake of his proud participation in Bush v. Gore. It’s especially instructive to compare the infamous Herrera v. Collins concurrence with his [...]

  11. [...] punchline, of course, is the guy who not only joined Bush v. Gore but wrote the stay opinion in is willing to call other Supreme Court decisions “stretches [...]

  12. [...] although a majority of Florida voters intended to vote for Gore have gotten their due attention: an outrageous Supreme Court decision and Ralph Nader’s all-too-successfully executed plan to throw the [...]

  13. [...] was also central to an actual example of election theft, Florida 2000. Since it’s essentially impossible to defend Bush v. Gore on its own terms, the most common Republican defense of the Supreme Court was that they engaged in [...]

  14. [...] it has been fairly extensively cited by lower courts, who have (properly) ignored the Court’s explicit admission that they were committing fraud assertion that “[o]ur consideration is limited to the present circumstances.” And this [...]

  15. [...] v. Gore will always be a massive embarrassment to the five judges that understandably refused to sign their names to it (although, in fairness, Rehnquist, Scalia and [...]

  16. Miho Masami says:

    Interesting that everyone was on time for the meal this year. Wonder if they read your blog following last years’ hoe down. Anyway- looks like you did a fantastic job as usual. Sometimes I wonder if you have more hours in the day over there on the east coast. I’m amazed at how much you get done.

  17. りぼあせ says:

    I was very pleased to find this website. I wanted to thank you for your time for this wonderful post

  18. [...] The 14th Amendment forbids states from using different systems to count votes in different localities if this could result in a Republican president not being elected, and not in any other case. [...]

  19. [...] Balkin and Levinson observed, one of the many outrageous things about Bush v. Gore was that by lawlessly helping to install and legitimize their preferred [...]

  20. [...] consequences. But as we know, the Republicans who generally support this state of affairs are perfectly willing to pretend to care about uniformity to get results they like, so long as we understand that the question of uniformity presents many complexities and will not [...]

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