Bush v. Gore "didn't just scar the Court’s record; it damaged the Court’s honor" (Jeffrey Toobin)

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The scene in front of the Supreme Court in December 2000

"George W. Bush, for his part, found little reason to dwell on the controversial nature of his ascension to office, and in his memoir, “Decision Points,” he devotes less than a page to the Supreme Court decision. ('My first response was relief,' he writes of his reaction.) In public appearances, Antonin Scalia, a member of the majority in Bush v. Gore, regularly offers this message to people who question him about the decision: 'Get over it!'”

-- Jeffrey Toobin, in "Precedent and Prologue,"
in the Dec. 6 New Yorker

by Ken

It puzzled me why New Yorker legal correspondent Jeffrey Toobin should choose to write this "Comment" piece for the new issue on the Gore v. Bush decision by which the Supreme Court stopped the Florida vote-counting and installed George W. Bush in the White House. The first paragraph left me even more puzzled.

"Momentous Supreme Court cases," Toobin writes, "tend to move quickly into the slipstream of the Court’s history," and he cites Brown v. Board of Education (more than 25 case citations in the first ten years after the decision that barred segregation in public education) and Roe v. Wade (more than 65 citations in the first ten years after the decision that established a constitutional right to abortion). And then:

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.

But really, Mr. Toobin, why should we be surprised? Wasn't that written into the decision itself? The conservative majority that installed Chimpy the Prez (which included then-Chief Justice Rehnquist and retirement-bound Justice O'Connor, who by report needed a Republican president to enable her to vamoose from the Court, and therefore predates the ascension of those luminaries Chief Justice Roberts and Justice Alito) made it clear that this decision was not to serve as precedent of any sort.

Of course Toobin knows this:

Even at the time, Bush v. Gore was treated as a kind of novelty item, a one-off decision that applied only to the peculiar facts then before the Justices. The majority itself seemed to want it that way. In the most famous sentence from the decision, the Justices wrote, "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." (Unlike most weighty decisions, Bush v. Gore had no single author and was delineated "per curiam," or by the Court, a designation the Justices usually reserve for minor cases.) In light of all these admonitions to leave the case be, might getting over it be the best advice?

Actually, no. To return briefly to the distant world of chads, hanging and otherwise, it's worth recalling what Bush v. Gore was about. The pervasive uncertainty about the results of the election in Florida -- at the time, Bush led by five hundred and thirty-seven votes out of nearly six million cast -- prompted the Florida courts, interpreting Florida election law, to order a statewide recount of all undervotes and overvotes; that is, ballots that indicated no Presidential preference or more than one. (Chads were the tiny paper rectangles that voters were supposed to push through punch-card ballots.) That recount had already begun on Saturday, December 9th, when five Justices -- Scalia, William H. Rehnquist, Sandra Day O'Connor, Anthony M. Kennedy, and Clarence Thomas -- issued a stay, barring the Florida authorities from continuing their labors. Three days later, the same five issued the per-curiam decision that stopped the recount once and for all.

What made the decision in Bush v. Gore so startling was that it was the work of Justices who were considered, to greater or lesser extents, judicial conservatives. On many occasions, these Justices had said that they believed in the preëminence of states' rights, in a narrow conception of the equal-protection clause of the Fourteenth Amendment, and, above all, in judicial restraint. Bush v. Gore violated those principles. The Supreme Court stepped into the case even though the Florida Supreme Court had been interpreting Florida law; the majority found a violation of the rights of George W. Bush, a white man, to equal protection when these same Justices were becoming ever more stingy in finding violations of the rights of African-Americans; and the Court stopped the recount even before it was completed, and before the Florida courts had a chance to iron out any problems -- a classic example of judicial activism, not judicial restraint, by the majority.

Toobin explains finally why the ruling has such resonance for him in 2010:

[T]he case also represents a revealing prologue to what the Supreme Court has since become. As in Bush v. Gore, nominally conservative Justices no longer operate by the rules of traditional judicial conservatism.

The Court is now led, of course, by Chief Justice John G. Roberts, Jr., who was appointed by Bush in 2005 (and who, in 2000, travelled to Florida as a private lawyer working on Bush’s behalf). Under Roberts, the Court has continued to use the equal-protection clause as a vehicle to protect white people. In 2007, in Roberts’s first major opinion as Chief, he struck down the voluntary school-integration plans of Seattle and Louisville, which had been challenged by some white parents. Likewise, under Roberts the conservatives have abandoned their traditional concern with states’ rights if, for example, the state is trying to protect the environment. In another 2007 case, Roberts, Scalia, Thomas, and Samuel A. Alito, Jr. (who replaced O’Connor), argued in dissent that states had no right to force the Environmental Protection Agency to address the issue of global warming.

And as many writers, yours truly included, have pointed out frequently in recent years, the modern Court has abandoned all but the pretense of outrage at the Right's once-hated "judicial activism."

The echoes of Bush v. Gore are clearest when it comes to judicial activism. Judicial conservatism was once principally defined as a philosophy of deference to the democratically elected branches of government. But the signature of the Roberts Court has been its willingness, even its eagerness, to overturn the work of legislatures. Brandishing a novel interpretation of the Second Amendment, the Court has either struck down or raised questions about virtually every state and local gun-control law in the nation. In Citizens United v. Federal Election Commission, decided earlier this year, the Court gutted the McCain-Feingold campaign-finance law in service of a legal theory that contradicts about a century of law at the Court. (Citizens United removed limits on corporate expenditures in political campaigns; the decision is, at its core, a boon for Republicans, just as Bush v. Gore was a decade ago.) When the Obama health-care plan reaches the high court for review, as it surely will, one can expect a similar lack of humility from the purported conservatives.

Many of the issues before the Supreme Court combine law and politics in ways that are impossible to separate. It is, moreover, unreasonable to expect the Justices to operate in a world hermetically cut off from the gritty motives of Democrats and Republicans. But the least we can expect from these men and women is that at politically charged moments -- indeed, especially at those times -- they apply the same principles that guide them in everyday cases. This, ultimately, is the tragedy of Bush v. Gore. The case didn’t just scar the Court’s record; it damaged the Court’s honor.

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