You remember the legal horror show called Bush v. Gore? The Supreme Court couldn’t possibly replicate that. But don’t underestimate the justices’ capacity for self-inflicted wounds. The sequel’s being scripted and it may be worse.
Twenty years ago, the court stepped in to halt a recount in the disputed 2000 presidential election. Both the Constitution and federal law specifically entrusted Congress to resolve such a deadlock. But the justices recklessly inserted themselves anyway. The fiercely divided ruling cost the court its legitimacy and hurt the country.
Now there are widespread worries that the court will jump in again. “I think this will end up in the Supreme Court,” President Trump said in late September. Having just placed Amy Coney Barrett, the sixth Republican-appointed justice on the court, he is evidently thrilled about that prospect.
Only two justices remain on the court who were there in 2000 — Clarence Thomas and Stephen Breyer. Have they and their fellow justices learned anything from the court’s misadventure?
One of the biggest myths about the court — born of its continuing gratuitous interventions in contentious issues that should have been left to Congress and states — is that it had no choice but to meddle. That self-proclaimed textualist, Justice Antonin Scalia, told an interviewer years after Bush v. Gore, “We were the laughingstock of the world — the world’s greatest democracy that couldn’t conduct an election.” He omitted any mention of where in the Constitution he had unearthed a “Laughingstock” clause that justified the court’s intrusion.
On occasion, he had a smugger response when asked about the 5-to-4 ruling. “Get over it!” he’d say. Justice David Souter, who dissented, never did, so appalled was he about Bush v. Gore.
The court’s docket is discretionary. The only plausible explanation for the court’s taking up Bush v. Gore is institutional arrogance — the belief that the justices alone could save the country from a crisis that wasn’t a crisis. But the Constitution and a federal statute provide what to do in such instances, even if a president isn’t chosen by Inauguration Day. That hubris not only made the justices look like partisans in robes but also raised the stakes for future court nominations.
When the court shuts down a recount, invents an individual’s right to bear arms under the Second Amendment, unleashes big money into campaigns, guts voting rights and sets abortion policy, presidents and senators react accordingly. The storm over Justice Barrett’s confirmation is the latest chapter in a story that begins with the justices themselves.
Bush v. Gore involved just one state, Florida. This year, that case might look like a picnic. With so many battleground states and with hundreds of lawsuits, no doubt this is the most litigated election ever.
Still, elections should be garden-variety state matters, even races for the presidency. State courts should be left to make decisions based on their own state laws and state constitutions. Yet there’s plenty of reason to think some of the justices would be happy to substitute their own judgment.
In 2000, the court’s logic was that the 14th Amendment’s guarantee of “equal protection” rendered Florida’s system unconstitutional because different counties used different standards to evaluate contested ballots. Never mind that the counties all set out to determine the intent of any given voter. Never mind that George W. Bush’s lawyers had raised the equal protection argument only in passing.
Why would they do otherwise? There were 3,141 counties in the United States. Most contained multiple municipalities, most of which had separate voting precincts. There were different machines, ballot designs and instructions. Lines could be short in some neighborhoods, around the block in others. Many of the disparities disproportionately affected Black people, the chief intended beneficiaries of the 14th Amendment. Yet the court had never gone near declaring that such variances amounted to constitutional transgressions.
In Bush v. Gore, the justices did. Had they finally seen the light when it came to voting inequities? Nope. They were apparently ambivalent enough about their own reasoning that they said the case should not be considered a precedent. Bush v. Gore is the Lord Voldemort of Supreme Court jurisprudence — the case that must not be named.
So maybe the court cooks up some rationale that, lo and behold, again benefits the Republican candidate. Couldn’t happen? It already is, as recent rulings from the court underscore. It’s true that Chief Justice John Roberts on Oct. 19 surprised us, keeping the court out of the political storm. He split from the other four Republican-appointed justices to allow election officials in Pennsylvania to count certain mailed ballots received after the polls close on Election Day. He did so to avoid overruling an interpretation of Pennsylvania law by the state’s own highest court.
Then, last week, he sided with his fellow Republican-appointed justices to block Wisconsin from counting mailed ballots received after Election Day. His distinction was that in Wisconsin it was a federal and a not a state judge who extended a state electoral deadline. That, the chief justice said, wasn’t OK. He was the only justice to make that distinction.
With Justice Barrett on the court, the chief justice doesn’t much matter anymore. Even without him, the court has five other justices appointed by Republicans. The occasionally restrained chief has been the swing justice in the past two years. No more. We don’t know for sure what Justice Barrett thinks about court interventions in presidential elections, but we do know that she, like John Roberts, went to Florida as a private lawyer in 2000 to assist Bush. (Her task, wouldn’t you know it, was to make sure Republican voters’ mailed absentee ballots got counted.)
In their opinion last week on Pennsylvania ballots, Justices Neil Gorsuch, Samuel Alito Jr. and Thomas — all appointed by Republicans — didn’t bother with the chief justice’s salami-slicing. They seemed to indicate that even a state court’s enforcement of voting rights under a state constitution would be unacceptable if that enforcement differed from the judgment of a state legislature. Who but the Supreme Court to fix that?
Justice Brett Kavanaugh didn’t sign that opinion. Instead, he had issued his own in the Wisconsin case that actually cited Bush v. Gore, favorably so. Twenty years ago, when he was a private lawyer, he liked the ruling so much that he gave a TV interview on the court’s steps extolling it. Count them up: At minimum, that’s four votes ready to repeat the ignominy of Bush v. Gore. Voldemort may live again, and the horror show of 2000 reprised.
Justice Barrett and the rest of them might learn a lesson not from Justice Scalia’s “Get over it!” defense but from former Justice Sandra Day O’Connor. She’s the only justice in the Bush v. Gore majority who has publicly expressed misgivings about the entire episode.
“Maybe the court should have said, ‘We’re not going to take it — goodbye,’” she told The Chicago Tribune in 2013, eight years after retiring.
For the good of the country — and for its own good — the Supreme Court ought to stay a million miles away from any Trump v. Biden or Biden v. Trump this year.
David A. Kaplan, a former legal affairs editor of Newsweek, is the author of “The Accidental President: How 413 Lawyers, 9 Supreme Court Justices and 5,963,110 Floridians (Give or Take a Few) Landed George W. Bush in the White House.”
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