“The Unbearable Wrongness of Bush v. Gore.”
“The Worst (or at least Second-To-The-Worst) Supreme Court Decision Ever”
“Bush v. Gore: What Were They Thinking?”
“What’s So Bad About Bush v. Gore?”
Welcome to just some of the reviews of the decision in Bush v. Gore. And there are so many more!
I walked through the basics of the case in Class 12.
Well, it’s safe to say that no decision in modern times has been more roundly criticized than the one that ended the 2000 Presidential election.
Of course, much of that criticism came from political actors—a charge that a conservative Court interfered on ideologic grounds to hand Bush the White House. It’s a charge that’s stuck ever since.
But what about the decision as a matter of law?
Did it really veer so far from legal norms in a way that justifies that political and institutional criticism?
Class 13 of my Voting Rights Academy will review these critiques, and let you decide for yourself:
Taking the Case at All: Too Political
The Critique: This was a Political Question, meant for Congress
Bush v. Gore has been referred to as “Frankfurter’s revenge”—a perfect example of the Court resolving a highly charged political battle when, in the end, a dispute over the unresolved outcome of a presidential election is a matter the Constitution assigns to Congress.
Justice Breyer emphasized this in his dissent (“Congress is the body primarily authorized to to resolve remaining disputes…The decision by both the Constitution’s Framers and the 1886 Congress to minimize this Court’s role in resolving close federal Presidential elections is as wise as it is clear.”)
The Critique: This was a Florida Question, Not Meant for the Supreme Court
The fact that this was largely a dispute over how to apply Florida election law, and that under federalism principles, the highest court in Florida was owed deference over its interpretation of state law, only added fuel the fire that the Court’s intervention was not appropriate. This was especially true when the Justices who made mincemeat out of the state court’s ruling on state law matters were typically those most likely to embrace federalism.
The Critique: The Breakdown in Voting Oozed of Politics
Of course, beyond the damage of taking the case and ending a contested election, the fact that the 5-4 split of the decision fell along predictable ideological lines only furthered the impression that politics was at play.
Stopping the Count
The Critique: There was no Basis to Stop the Count As the Case Proceeded.
The standard for issuing a stay amid a proceeding (which the Court did here, halting the counting from taking place pending appeal) is not only that the suing party will likely prevail on the merits, but that the stay is needed to prevent irreparable injury to that party.
But what was the imminent harm here? Specifically, what was the imminent harm threatened by counting the votes with a deadline looming?
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