Bush v. Gore revisited: what might have been

It’s taken me a few days to get around to writing about it, but among the various stories coming out of the United States in the last week I don’t think there’s anything more interesting that this interview by the Chicago Tribune with retired Supreme Court justice Sandra Day O’Connor.

We still talk and argue about the Iraq war ten years on, but the Supreme Court decision of Bush v. Gore that made it possible seems to have faded from public memory a bit. So perhaps a quick recap is in order.

Al Gore had been vice-president to Bill Clinton for eight years and was the Democrat nominee for president in 2000. He was an uninspiring candidate, but the country was prosperous and at peace, Clinton was popular, and the Republicans had nominated a lightweight, George W. Bush. It shouldn’t have been a difficult election to win, but Gore made it needlessly difficult for himself by trying to distance himself from Clinton instead of clinging tightly to his coattails.

Even so, Gore still won the popular vote, by about 550,000 votes. But the electoral college, with its rural bias, was more difficult, and Gore had to win Florida to take the presidency. Florida was very close, and Republican officials – aided by bussed-in Republican rioters – did everything they could to obstruct a recount. Not until 8 December, a month after polling, did the Florida Supreme Court order a full manual recount of the whole state.

We now know that if the full recount had been done, including the votes that had initially been rejected as informal (there are conflicting views on whether Florida officials would actually have done this), Gore would have won. But the following day, by a 5-4 decision, the US Supreme Court stayed the recount, and on 12 December it overturned the Florida ruling and made the stay permanent. Gore threw in the towel, and Bush was duly sworn in as president, with incalculable consequences for America and the world.

O’Connor, a Republican appointee and the court’s first female member, was one of those five majority justices, and last week she indicated that she might have made the wrong decision. She said it “gave the court a less-than-perfect reputation” and “probably … added to the problem at the end of the day.” Maybe, she said, “the court should have said, ‘We’re not going to take it, goodbye.'”

This isn’t the first time O’Connor has shown a degree of unease. In 2006, shortly after her retirement, she criticised Republican attacks on the judiciary and expressed concern about where they might lead. As reported by National Public Radio:

O’Connor said we must be ever-vigilant against those who would strongarm the judiciary into adopting their preferred policies. It takes a lot of degeneration before a country falls into dictatorship, she said, but we should avoid these ends by avoiding these beginnings.

At the time I remarked that her “critique would carry more weight if it was accompanied by some sort of apology” for her vote in Bush v. Gore. Now she’s gone further; it’s still not an apology, but it’s about as close to one as judges ever make for their bad decisions.

If O’Connor had been really worried about what the Republicans were doing to the legal system, she could have deferred her retirement for three years so that her replacement would have been made by a Democrat president, which would have crucially altered the balance on the court. But there’s no signal that she considered that.

The New Republic this week claims to have evidence that O’Connor was more partisan than she let on, in the shape of a letter to fellow Arizonan Barry Goldwater in 1988 saying that it was “vital for the Court and the nation” that George Bush senior win that year’s election (as he did). But that’s hardly a smoking gun; firstly because Bush junior was a different article to his father, but more importantly because evidence that a judge (or anyone else) holds strong political views is of itself no evidence that they will put those views ahead of their professional duty.

O’Connor’s record as a justice was mostly very distinguished; she often held the balance of power between liberal and conservative forces on the court, and she handled it responsibly. It’s her personal misfortune – a misfortune she now appears to recognise – that history quite probably will hold that of little account when compared to her role in making Bush president.

5 thoughts on “Bush v. Gore revisited: what might have been

  1. The decision wasn’t wrong because George W was a lightweight who rushed into an unnecessary war, it was wrong because it effectively emasculated recounts in presidential elections. What other remedy does a Court supervising an election have ?

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  2. Thanks Andy – yes, I agree entirely. I think it was a momentous decision because of what sort of president Bush turned out to be, but that’s not what makes it bad law. Fortunately the chance of a key state again being as close as Florida was is pretty small, but you never know.

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  3. Fortunately, democracy being such a good thing, four years later the American people has their chance to toss out the light weight President after seeing his mistakes and war moungering….

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  4. Quite true Andrew; they chose (albeit very narrowly) to re-elect him, as people usually do in wartime.

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