“Obviously the court did reach a decision and thought it had to reach a decision,” she said. “It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.“
And, again, it’s not just that justices notably unsympathetic to broad equal protection claims claimed to accept an innovative equal protection argument. Where Bush v. Gore immediately falls apart and becomes a historic disgrace is that the completely lawless remedy left an election count with all of the alleged equal protection defects of the court-ordered recount (and the “mess up” job of the Florida authorities) in place.
Bush 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 Thomas did put their names on the even more hackish concurrence.) I can understand why O’Connor is uncomfortable with that, but she can’t escape it.