Bush v. Gore 10 years later

Today is the 10th anniversary of the Supreme Court’s ruling in Bush v. Gore that ended the Florida recount and made George W. Bush president. Jeffrey Toobin, the legal affairs writer for the New Yorker seizes the occasion to take a wrecking ball to the ruling which, he says, turned the traditional notion of judicial conservatism on its head:

“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.”

These are not really new insights, but, as Toobin also notes, the importance of this redefinition has been magnified by what the court’s conservatives — with fresh enthusaism from the addition of Bush-appointed Justices John Roberts and Samuel Alito — have done with it.

“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.”

Toobin has been building this case for a while. And I can’t claim to have read every syllable he’s devoted to the Roberts era. But he may have taken his indictment of the court to a new pitch with the close of this piece, especially its final word:

“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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Comments (15)

  1. Submitted by Joey White on 11/29/2010 - 11:46 am.

    The Bush v. Gore ruling didn’t come until December 12th. You’re nearly 2 weeks early.

  2. Submitted by Ray Schoch on 11/29/2010 - 11:54 am.

    Agreed. No one who professes to be “conservative” has any credibility at all when complaining about “activist judges” unless they cite as prominent examples the Supreme Court decisions Toobin describes.

  3. Submitted by Sheila Ehrich on 11/29/2010 - 12:21 pm.


    By any chance did you watch 60 Minutes last night? There was a very interesting interview with former Justice Stevens, part of it covering this issue. He discussed why he was so upset with the Supreme Court even becomming involved in the issue. Quite enlightening in terms of Supreme Court history and and its current activism.

  4. Submitted by Richard Schulze on 11/29/2010 - 06:02 pm.

    I do agree that the non-precedential finding in Bush v. Gore ought to be the least faithful ruling in the history of the supreme court. Its hard to think of when a court showed less care for the law.

  5. Submitted by Dennis Tester on 11/29/2010 - 08:47 pm.

    The Court ruled 7-2 that the recount, as it was being conducted, was unconstitutional because it violated George Bush’s 14th Amendment rights by using different standards of counting in different counties.

    Two of those votes were from Breyer and Souter, not exactly considered to be conservatives.

    The 5-4 vote that Toobin and others obsess over was on the remedy … whether or not a recount should be re-done, given that the state-defined deadline had passed. As it turns out, it wouldn’t have mattered as subsequent recounts paid for by the Washington Post and others found that the winner of the election was George Bush all along.


    Toobin should reliquish his law license for advancing such nonsense.

  6. Submitted by Hana Williams on 11/30/2010 - 06:14 am.

    Gore’s Florida lawsuit was based on doing recounts in a few selected counties where he would gain votes, and not doing recounts in the rest.

    A very biased Florida Supreme Court ignored Florida and Federal law in deciding all issues for Gore. Gore even attempted to invalidate absentee ballots.

    The US Supreme Court righted this wrong.

    Toobin does history a disservice by ignoring the facts, piling on “Bush-Gore-Florida” as if this was actually anything more than an attempt by Gore’s lawyers to steal an election.

    Toobin is despicable for playing the race card on this.

    Toobin’s attempt to redefine “judicial activism” as Republican attempts to roll back Democratic judicial activism, big government, and to regain some of our lost liberty, is just plain absurd.

  7. Submitted by Richard Schulze on 11/30/2010 - 07:16 am.

    I used to think Supreme Court justices were above that sort of thing. But then came the convenient, “this law will self-destruct after one inauguration” verdict in Bush v Gore, which just happened to gain the votes of the five most right-wing members of the court. That travesty of a decision savaged the court’s claim to objectivity in electoral politics.

  8. Submitted by Paul Udstrand on 11/30/2010 - 09:05 am.

    //As it turns out, it wouldn’t have mattered as subsequent recounts paid for by the Washington Post and others found that the winner of the election was George Bush all along.

    Wrong Dennis, those study’s showed that in fact there were more votes for Gore than there were for Bush. Gore was a disappointing candidate, his handling of the situation was weak and disorganized. Has he demanded a state wide recount instead of trying to cherry-pick the counties he thought he won… he would have won.


    The supreme’s could have ordered such a recount but instead they stopped the recount all together and declared Bush the winner. The 7-2 was simply a prelude to one of the worst judicial interventions in history. Toobin merely points out the fact that the supreme’s intervened before that process had worked itself out.

    Scalia has long since admitted that the courts intervention was not driven by law, his concern was that:”The world was laughing at us”.

    As for “Originalism”, it has been discussed here on Minnpost previously. I have frequently argued that the whole doctrine is an intellectual sham. It’s very existence in US jurisprudence is little more than giant embarrassment. It is Scalia and his ilk that should be relinquishing their law degrees. Either that or show us their time machine.

  9. Submitted by Greg Kapphahn on 11/30/2010 - 09:13 am.

    As has been proven repeatedly by this court, it has a decided bias which runs quite counter to what the founders of this nation envisioned and is, by its rulings, gradually enabling the creation, through economic means, of exactly the oligarchic nation that the founders worked so hard to prevent.

    History will very likely look back and conclude that it was with the Roberts court, beginning with Bush v. Gore, that the great American experiment in government “of the people, by the people, and for the people” came to an end.

  10. Submitted by RB Holbrook on 11/30/2010 - 12:16 pm.

    Hana, it is way outside the jurisidiction of the U.S. Supreme COurt to correct a supposed misinterpretation of state law. The Supreme COurt has authority only to decide if a state law, or a state court’s ruling, comports with the U.S. Constitution. A state court’s reading of its own law is not for the federal courts to “correct.”

    That one fact alone is enough to demonstrate the gross overreaching that was Bush v. Gore.

  11. Submitted by Dennis Tester on 11/30/2010 - 09:46 pm.

    “The Supreme COurt has authority only to decide if a state law, or a state court’s ruling, comports with the U.S. Constitution.”

    And that’s what it did. George Bush didn’t waive his constitutional rights when he arrived in Florida. He was denied his 14th Amendment right of equal protection under the law when the ballots were counted differently in different counties. The SCOTUS recognized this and by a vote of 7-2, stepped in to protect George Bush’s constitutional rights.

  12. Submitted by Paul Udstrand on 12/01/2010 - 08:59 am.

    Dennis, you can focus on that one tree for a very as long as you want. It’s intellectually dishonest to deny the tree sits in a forest.

  13. Submitted by Bernice Vetsch on 12/01/2010 - 09:50 am.

    Even if a recount by the Washington Post et al. had seemed to indicate that Bush had won, the number of votes NOT cast by eligible voters because Florida’s secretary of state wrongly purged them from the roles (because of such has having a name similar to that of a felon) would have made Gore’s win even more obvious.

    She was rewarded by Republican help in winning a seat in the US House. The good news is that she was not re-elected two years later.

    In my opinion, the Supreme Court committed a crime against the people of the United States. The first of more to follow, pro-corporate Citizens United included.

  14. Submitted by RB Holbrook on 12/01/2010 - 12:19 pm.

    “He was denied his 14th Amendment right of equal protection under the law when the ballots were counted differently in different counties.”

    Let’s assume that a candidate for office has a constitutionally protectible interest in the ballot-counting procedures (never before enunciated by the Supreme Court, but that’s another matter). The Supreme Court’s remedy was, in effect, to take away the rights of the voters of Florida to have their votes counted at all. Whose right is more important here?

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