In 1986, when Warren Burger retired, Ronald Reagan promoted Associate Justice William Rehnquist to the position of Chief Justice and nominated Antonin Scalia to fill Rehnquist’s seat. This created a solid conservative kernel on the Court consisting of the five justices Rehnquist, Scalia, Thomas, O’Connor and Kennedy; there was also Justice John Paul Stevens (appointed by Gerald Ford) who was considered a “moderate conservative.” On occasion O’Connor or Kennedy could become a swing vote and turn things in another direction and Stevens too voted against the conservative majority on some important decisions.
While more conservative than the Burger Court, the Rehnquist Court did not overthrow the legacy of the Warren Court; on the other hand, it promoted a policy of “New Federalism” which favored empowering the states rather than the federal government.
This philosophy was applied in two cases that weakened Roe v. Wade, the defining ruling of the Burger Court.
Thus in Webster v. Reproductive Health Services (1989), the Court upheld a Missouri law that restricted the way state funds could be used in connection with counseling and other aspects of abortion services; this ruling allowed states to legislate in ways thought to have been ruled out by Roe.
As a second example, we have their ruling in Planned Parenthood v. Casey (1992) which also weakened Roe by giving much more power to the states to control access to abortion. Thus today in states like Mississippi, there is virtually no such access. All this works against the poor and the less affluent as women need to travel far, even out of state, to get the medical attention they seek.
Then the Rehnquist Court delivered one of the most controversial, politicized decisions imaginable with its ruling in Bush v. Gore (2000). With this decision, the Court came between a state supreme court and the state’s election system and hand-delivered the presidency to Republican George W. Bush.
After this case, the Court made other decisions that generated some controversy, but in these it came down, relatively speaking, on the liberal side in ruling on anti-sodomy laws, on affirmative action and on election finance. However, Bush v. Gore is considered one of the worst Supreme Court decisions of all time. For a list that includes this decision, Dred Scott, Plessy v. Ferguson and ten others, click HERE ; for a TIME magazine piece that singles it out as one of the two worst decisions since 1960 (along with Citizens United v. FEC), click HERE .
Naturally, the 5-4 decision in Bush v. Gore by the Court’s conservative kernel is controversial because of the dramatic end it put to the 2000 presidential election. There are also legal and procedural aspects of the case that get people’s dander up.
To start there is the fact that in this decision the Court overruled a state supreme court on the matter of elections, something that the Constitution itself says should be left to the states.
For elections, Section 4 of Article 1 of the U.S. Constitution leaves the implementation to the states to carry out, in the manner they deem fit – subject to Congressional oversight but not to court oversight:
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing (sic) Senators.”
N.B. In the Constitution, the “Senators” are an exception because at that time the senators were chosen by the state legislatures and direct election of senators by popular vote did not come about until 1913 and the 17th Amendment.
From the time of the Constitution, voting practices have varied from state to state. In fact, at the outset free African-Americans with property could vote in Maryland and that lasted until 1810; women of property could vote in New Jersey until 1807; in both cases, the state legislatures eventually stepped in and “restored order.”
In the Constitution, it is set out that the electors of the Electoral College should be named by each state legislature and not voted for by the people at all – Hamilton and Madison were most fearful of “mob rule.” The only founding father who expressed some admiration for the mass of U.S. citizenry was, not surprisingly, Jefferson who famously asserted in a letter to Lafayette that “The yeomanry of the United States are not the canaille [rabble] of Paris.”
Choosing Electors by popular vote was established nation-wide, however, by the 1820s; by Section 4 of Article 1 above, it is each state’s responsibility to implement its own system for choosing electors; there is no requirement for things to be uniform. In fact, today Nebraska and Maine use congressional district voting to divide up their electors among the candidates while all the other states use plurality voting where the presidential candidate with the most votes is awarded all the electoral votes from that state. In yet another break with the plurality voting system that the U.S. inherited from England, the state of Maine now employs ranked choice voting to elect Congressional representatives – in fact, in 2018 a candidate in a House Congressional race in Maine with fewer first place votes but a larger total of first and second place votes emerged the victor in the second round of the instant runoff.
So from a Constitutional point of view, the Supreme Court really did not have the authority to take the case Bush v. Gore on. In his dissent, Justice John Paul Stevens decried this usurpation of state court power:
[The court displayed] “an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed”.
Moreover, Sandra Day O’Connor said as much when some years later in 2013 she expressed regret over her role in Bush v. Gore telling the Chicago Tribune editorial board: “Maybe the court should have said, ‘We’re not going to take it, goodbye.’ ”
Taking this case on added to the Courts history of “self inflicted wounds” to use the phrase Chief Justice Charles Evans Hughes applied to bad decisions the Court just did not have to make the way they did for any compelling legal reason.
The concurring justices admitted that their decision was not truly a legal ruling but rather an ad hoc way of making a problem go away when they said that the ruling in Bush v. Gore should not be considered a precedent for future cases:
“Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”
Another odd thing was that the ruling did not follow the usual practice of having one judge write the deciding opinion with concurring and dissenting opinions from the other justices. Instead, they followed a technique known as a per curiam decision which is usually reserved for 4-4 hung court when no actual decision is being made. It is a technique for dodging responsibility for the decision and not assigning credit for a decision to a particular justice. As another example of how this method of laying down a decision is employed, in the state of Florida their Supreme Court often issues per curiam decisions in death penalty cases.
Borrowing a trope from the Roman orator Cicero, we pass over in silence the revelation that three of the majority judges in this case had reason to recuse themselves by not mentioning the fact that Justice Thomas’ wife was very active in the Bush transition team even as the case was before the Court, by leaving out the fact that Justice Scalia’s son was employed by the very law firm that argued Bush’s case before the Court, by omitting the fact that Justice Scalia and vice-presidential candidate Dick Cheney were longtime personal friends and by skipping over the fact that according to The Wall Street Journal and Newsweek, Justice O’Connor had previously said that a Gore victory would be a disaster for her because she would not want to retire under a Democratic president!
For an image of Cicero practicing his craft before an enthralled Roman Senate, click HERE .
So we limit ourselves to quoting Harvard Professor Alan Dershowitz who summed things up this way:
“The decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath.”
Another villain in the piece is Governor Jeb Bush of Florida whose voter suppression tactics implemented by Secretary of State Katherine Harris disenfranchised a significant number of voters. In the run up to this election, according to the Brennan Center for Justice at NYU, some 4,800 eligible African-American Florida voters were wrongly identified as convicted felons and purged from the voting rolls. Given that 86% of African-American voters went for Gore over Bush in 2000, one can do the math and see that Gore would likely have won if but 20% of these African-American voters had been able to cast ballots.
Yet another villain in the piece and in the recurring election problems in Florida is the plurality voting system that the state uses to assign all its votes for its electors to the candidate who wins the most votes (but not necessarily the majority of votes). This system works poorly in cases where the elections are as tight as again and again they prove to be in Florida. In 2000, had Florida been using ranked-choice voting (to account for votes for Nader and Buchanan) or congressional district voting (as in Maine and Nebraska), there would have no recount crisis at all – and either way Gore would in all probability have won enough electoral votes to secure the presidency and the matter never would have reached the Supreme Court.
Sadly, the issues of the presidential election in Florida in 2000 are still very much with us – the clumsiness of plurality voting when elections are close, the impact of voter suppression, antiquated equipment, the role of the Secretary of State and the Governor in supervising elections, … . The plot only thickens.