Bush v. Gore 25 years later and Trump’s trashing of the DOJ

Emily Bazelon (gift link) surveyed 50 elite DC lawyers, including former federal judges, high DOJ officials, and the like, a year ago about their concerns regarding another Trump administration and the rule of law. They were moderately concerned then, although there was a lot of talk of how elite lawyers would hold the line because they went to the best schools etc. Now she’s surveyed the same group again, which is evenly divided between Democrats and Republicans, and the almost universal consensus of the best and the brightest is that things are much worse now than they thought they would be:

Before Trump’s re-election, many of our respondents expressed faith in the government’s system of checks and balances to do what it historically had done: provide a necessary corrective to the potential overreach of any other branch. Now all 50 believe that Congress, which the framers intended to be the most powerful branch of government, is doing very little — or nothing at all — to fulfill its role of restraining the president.

“The greatest threat,” said Stuart Gerson, an assistant attorney general for President George H.W. Bush, “comes with the probability that the president is on the road to assuming autocratic powers and that the Congress has allowed its countervailing constitutional powers to wither.”

Hey but what about the Least Dangerous Branch?

Some former officials said the Supreme Court set the country up for disaster by ruling in July 2024 that presidents are immune from criminal prosecution for most of their official actions. “The Supreme Court has shocked me the most,” said Nancy Gertner, a retired federal judge appointed by President Bill Clinton. Gertner referenced the theory of some experts that the justices’ rulings are an effort to amass credibility with Trump so that he’ll abide by their order when they eventually rule against him. “I am more and more skeptical of that,” she said. “I believe that they are fully on board with enabling him.”

A morbidly amusing side note is that a half dozen of these brahmins of the law, most of whom remain too cowardly to attach their names to their views in public, blame Joe Biden for exacerbating the situation because he made a quarter-hearted attempt to maybe sort of prosecute Donald Trump for the most serious crimes ever committed by any American president:

Six respondents lay blame on the Biden administration for posing similar, or even greater, threats to the rule of law as Trump. Some of them saw Merrick Garland’s decision to appoint Jack Smith as special counsel to investigate Trump as a fatal misjudgment. “Garland thought he was limiting himself by appointing Smith,” said the former Trump official. “But from Day 1 of Smith’s appointment, it was clear Trump would be indicted. In an alternate universe, there’s no Smith, no Jan. 6 case against Trump, which they didn’t have to bring, and maybe American politics looks different today.”

The logic here essentially is that handing Hitler Austria and the Sudetenland avoided a second world war , so why not try that again? Along of course with the all-time greatest hit on the GOP Hot 100, EAIAC, with its B side, prosecuting prominent Republicans for real crimes is as bad as prosecuting Democrats for fake ones, so both sides, now and forever.

I’m teaching a class this semester about the collapse of the American legal system in the face of authoritarianism generally and fascism in particular, and we just did a session on Bush v. Gore, which will be 25 years old in a couple of months. That case was supposed to be a one-time only deal, in which the Republican-appointed majority handed the presidency to the Republican candidate on the basis of transparently specious arguments, because it was really really important for Bush to win, while the five Republican-appointed justices who simply stole the presidency in broad daylight also pinky promised that they wouldn’t do this kind of thing again. (The case remains the only example in the entire SCOTUS oeuvre of the Supremes announcing that one its decisions shouldn’t be used as precedent for subsequent decisions).

The best summation of the facially absurd pretensions to disinterested adjudicating put forward by the majority was provided shortly afterwards by law professor Michael Klarman, as summarized below by Jack Balkin:

In any case, a simple thought experiment, along the lines suggested by Michael Klarman, can help resolve the question whether the U.S. SupremeCourt’s intervention is best explained by the Florida Supreme Court’s
partisanship or its own. Suppose for a moment that the positions of the parties were reversed. Suppose that the Florida vote had initially gone for Gore on November 7, that Bush had called to concede but then retracted his concession, and had begun a protest and a contest of the Florida results. Suppose further that the Secretary of State was cochairman of Gore’s presidential campaign in Florida, and issued the same interpretations of
Florida law as Katherine Harris did, although now to Gore’s benefit. Suppose the Florida legislature, now controlled by Democrats, was threatening to appoint its own slate of Democrat electors, egged on by the
Democratic governor of Florida, who just happened to be Al Gore’s brother. Then suppose that the Florida Supreme Court was stocked not with Democrats but Republicans, and that they issued the exact same opinions
with the exact same interpretations of Florida law, adopting the intent of the voter standard and ordering a statewide manual recount of ballots.

Now imagine that Gore’s attorney—the well-known liberal law professor Laurence Tribe—appeared before the U.S. Supreme Court and argued (1) that the Court should not defer to the Republican-controlled
Florida Supreme Court because the interpretation of Florida election law was a federal, not a state question; (2) that the Court should extend liberal Warren Court precedents concerning legislative redistricting to state
tabulation of ballots; and (3) that the Court should immediately shut the Republican Florida Supreme Court’s recounts down because of the paramount importance of the federal safe harbor rule. Does anyone think
that the result would have been the same? One can just imagine the look on Justice Scalia’s face as Tribe argued that the Florida state courts were lawless and should be subjected to federal supervision under Article II,
Section 1 and the Equal Protection Clause. Indeed, one is almost certain that a majority of the Court would have would have found these arguments highly implausible if delivered on Gore’s behalf. If so, then the justification
for the Court’s intervention cannot be that the Florida Supreme Court was unduly partisan and out of control, for the interpretations would be just as crazy and just as partisan if offered by Republicans as by Democrats.

The point here is that the Republican majority accepted legal arguments that they would have treated as utterly outrageous on their face, if the parties had simply been reversed.

On a related note, a bogus post hoc rationalization of this incredibly disgraceful and destructive moment in the downward spiral of the American legal system into increasingly pure reactionary hackery is that Bush would have won anyway, so the decision made no difference. This is pernicious nonsense for two distinct reasons.

First, a comprehensive review of the ballots cast in Florida reveals that Gore would have won if the standard articulated by the Florida Supreme Court — that the intent of all voters statewide should be honored — had actually been enforced. A statewide recount that counted all overvotes and undervotes would have given the election to Gore. Indeed there’s not the slightest doubt that tens of thousands more Floridans intended to cast their ballots for Gore rather than Bush in November 2020.

Second, and more critically for the destruction of any faith in the SCOTUS’s impartiality, the post hoc rationalization ignores that the five Republican justices who stole the election in broad daylight could not possibly have known what the results of a recount would be when they engaged in their grand theft of the presidency of the United States, and, crucially, of the identity of their own successors (Roberts and Alito, rather than two Democratic appointees, are on the court because of this decision). If you rob a poker game just before the river card is flipped, it really doesn’t matter one way or another whether you would have won the hand anyway.

All of which is to say that what Donald Trump represents has been coming down the pike for a long, long time now.