Bush v. Gore Reloaded

Hard to believe it’s been ten years since one of most contentious Supreme Court decisions in recent memory.

There are two issues wrapped up in Bush v. Gore, of course. The first concerns the election itself. That’s not a subject I really feel like re-opening, given all the Michael Moore-esque bullshit out there. I don’t think either side covered themselves with glory but there was something particularly repellent about the Gore team’s tactics — loudly proclaiming themselves as the defenders of democracy while trying just as many sneaky tricks as the Bush team did. Say what you about Republicans, at least they don’t pretend to be noble.

Well, at least they didn’t used to.

The other issue is the SCOTUS decision itself, of course. It’s the ten year anniversary, so let the bullshit begin:

Momentous Supreme Court cases tend to move quickly into the slipstream of the Court’s history. In the first ten years after Brown v. Board of Education, the 1954 decision that ended the doctrine of separate but equal in public education, the Justices cited the case more than twenty-five times. In the ten years after Roe v. Wade, the abortion-rights decision of 1973, there were more than sixty-five references to that landmark. 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.

Toobin — that’s the writer of this piece of crap — goes on to argue that this means that Bush v. Gore was bad precedent. That’s as maybe but this argument doesn’t support his conclusion. SCOTUS decision on abortion and segregation affected people’s everyday lives. There were therefore hosts of cases that needed Brown or Roe clarified and applied. The only thing that would need Bush v. Gore as a precedent would be another national election. Razor-close national elections are rare. In fact, the last one I can remember that might have gone to SCOTUS was Coleman v. Franken. Coleman abandoned that case before it got that far.

Toobin is also full of crap because Bush vs. Gore has been cited by lower courts, including the 9th Circus.

The appropriate way to analyze the legal impact of Bush v. Gore would be to see how many cases on federal or state election law have come before the Court and how many could have cited Bush v. Gore but didn’t? Toobin doesn’t answer that because he’s not interested in the impact of Bush v. Gore; he’s interested in slamming it.

It gets better:

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.

The first part of this is vile poppycock. The Supreme Court applied the equal protection clause not because George W. Bush’s rights were violated. They applied it — appropriately in my view — because Florida did not have a uniform standard for counting hanging chads and other uncounted votes (that tends to happen when you’re making up the rules as you go). This set up a situation where a vote that was not counted in one county could be counted in another. It’s as if one county closed its polling office early (or maybe an entire panhandle). Indeed, it wasn’t clear that some counties would do the recounts at all. (This being of course what the Noble and Wise Gore team wanted — so that recounts would go on only in Democrat-controlled counties).

Moreover, that decision was 7-2, not 5-4. Frankly, I don’t know what Ginsberg and Stevens were smoking that day since it should have been 9-0.

The controversial 5-4 decision was to stop the recount completely. Now that one was a debatable decision. I think the Florida State Supreme Court was wrong to order the recount. The best way to hold an election is to set the rules in advance, follow those rules and then end it. The Florida Court was basically making the rules up as it went and along highly partisan lines.

However, as Toobin points out — correctly, even — this was judicial activism. The Constitution is quite clear that each state sets its own election rules — fairly or unfairly. Even if the Florida Court was screwing the law, one could argue that it was their law to screw.

So it’s perfectly reasonable to argue that the Court should have just insisted on a uniform recount standard and let the recount proceed. I might disagree with that, but it’s a legitimate point of view. But to argue that the Court should have let the unequal standards slide is ridiculous. And to argue that the Court made the decision because Bush was white is obscene.