The Tenth Anniversary of Bush v. Gore

Jeffrey Toobin has a new article in the New Yorker on the tenth anniversary of the Supreme Court decision in Bush v. Gore.

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.

Jeffrey says the "echoes" of the case 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.

...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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    somebody has to say it (5.00 / 2) (#3)
    by The Addams Family on Tue Nov 30, 2010 at 02:44:16 PM EST
    so i will

    a day that will live in infamy

    The "self-inflicted" damage (5.00 / 2) (#5)
    by KeysDan on Tue Nov 30, 2010 at 04:02:08 PM EST
    as Justice Breyer termed Bush v Gore, included, in my view, the legal ethics of several in the majority. Recusals were certainly in order for Scalia, whose son John worked at a law firm representing the Bush campaign in the Florida courts, and, his son, Eugene, who worked at a law firm representing the Bush campaign before the Supreme Court.

    Thomas, should also have recused himself.  His wife, Virginia, worked at the Heritage Foundation recruiting staff for the "incoming" Bush administration at the very same time that her husband, Clarence, was hearing the case.  Of course, there is the likely conflict of interest of Sandra O'Connor, who was reported to be livid at an election night DC party with the prospects of a Democratic president causing postponement of her retirement plans until a Republican was in the White House.  Not a pretty picture any way you look at it.

    You've all probably seen, (5.00 / 1) (#7)
    by NYShooter on Tue Nov 30, 2010 at 08:16:52 PM EST
     or heard, of a criminal recounting his baptism into the world of horrific crime, usually a sadistic murder or rape/murder, or something equally unconscionable. They always say they were scared stupid the first time, but after that first time they grew to love it and each time thereafter it became easier and easier. (warning: those that get all "puckered" at the use of analogies can exit here.)

    The point being, they knew a Gore victory simply would not be tolerated. They may have held their noses, but the outcome was certain. It was truly a pact with the devil but that wouldn't deter them. Such was the hatred of Gore, Democrats, and decency that I believe, anonymity being assured, they would have killed their own family members were that the price for a Bush victory.

    I remember driving in Manhattan when the decision was announced. And I remember that that was the day when evil and hatred proudly came out of the closet.

    And Obama wants to "reach out" to that?

    What a coward!

    Republicans had made plans (5.00 / 2) (#8)
    by observed on Wed Dec 01, 2010 at 06:08:47 AM EST
    for mass demonstrations and riots if Gore finally won, it was reported at the time.

    I've long thought (5.00 / 0) (#9)
    by brodie on Wed Dec 01, 2010 at 10:48:16 AM EST
    that if our side had been organized and gone out en masse to protest, peaceably, for all the votes to be counted, and done it frequently throughout Nov, that it's possible Scotus either wouldn't have stepped in or Justice Kennedy might have thought better of his initial inclination to stop the recount in favor of Junior.

    But no, our conflict-averse leaders, Gore especially, but also including Rendell (DNC Chair, iirc) and other softies, refused to countenance requests from organizers like Jesse Jackson to undertake public demonstrations.  Fear of violence erupting, they said.  Better to handle things quietly in the proper legal forums, said Team Gore.

    But by sitting quietly and politely and waiting for a favorable legal outcome, our side signaled that we wouldn't be too upset if the Sup Ct decided to decide the outcome, and some of the five Justices must have figured that the worst outcome would be a few days of grumbling from the left but that after that, mission accomplished with impunity.


    Made Plans? They DID Riot (none / 0) (#10)
    by Blue Jean on Wed Dec 01, 2010 at 12:09:17 PM EST
    Remember the Brooks Brothers riot?  They got plane tickets to come down to Florida to disrupt the count, rough up Democratic agents, and run rampant over the election process.  Less genteel rioters would have gotten a night in the slammer and/or tear gas; the GOP gave these white collar crooks a fancy party and Wayne Newton singing "Donke Shane."

    Right.. i'm talking about plans for (none / 0) (#11)
    by observed on Wed Dec 01, 2010 at 12:15:14 PM EST
    nationwide riots, in the event of a Gore win.

    Not cited? (2.00 / 1) (#1)
    by Gerald USN Ret on Tue Nov 30, 2010 at 01:33:05 PM EST
    Maybe nothing similar came up so that it could be cited.  

    On activism.  It seems to me to be the ancient case of "whose ox gored whose ox?"

    The Supreme court has changed it's mind and the law many times, and when people don't like the change they say the court is overstepping its bounds and when the people do like it then the court is finally doing the right thing.

    More than disagreement (5.00 / 4) (#2)
    by christinep on Tue Nov 30, 2010 at 02:23:23 PM EST
    Most telling about the "political thicket" into which the SCt lunged is the majority/minority split. The 5 to 4 split clearly reflected the political affiliation of the Justices (even Justice O'Connor...in many ways, it could be argued, the deciding vote.)  

    Certainly, your comments about how we might all be wont to view decisions make sense. Except: When the Court, as an intitution, goes so openly into a political maelstrom, it eschews some of its own oldest advice to avoid the "political thicket." Further, the add-on here is that those who preached the most about states' prerogatives in law and policy were seen in this case to have turned that judicial philosophy on its head by preempting the Florida Supreme Court's position.

    In the early part of my federal career, I worked as a staff attorney for a US Court of Appeals for more than two years. 'Read and saw many cases. (And, subsequent to that, my case involvement in federal issues continued for many years.) The Bush v. Gore resolution, truly, shook me to the core. Tho we all recover, that day stands for me as a sad day for the Courts and the law.


    Hardly (5.00 / 1) (#6)
    by Blue Jean on Tue Nov 30, 2010 at 04:32:10 PM EST
    Joe Miller's lawyers have already cited "Bush vs. Gore" in his current recount battle with Senator Murkowski.

    Which is funny, since the Gang of Five basically said that "Bush vs. Gore" ONLY applied to this one case at this one time.  No future cases need apply; certainly not a case where one Republican is contesting another.

    Now, if Miller was fighting a recount battle with a DEMOCRATIC senator, I bet Scalia and the rest of the Gang of Five would be citing "Bush vs. Gore" left and right on Miller's behalf.


    only ten years? (none / 0) (#4)
    by Capt Howdy on Tue Nov 30, 2010 at 03:48:49 PM EST
    seems easily twice that long.