Lyle Denniston examines the latest remarks by retired Justice Sandra Day O'Connor about the Supreme Court acted in the controversial Bush v.Gore decision.
The statements at issue:
"[The court] took the case and decided it at a time when it was still a big election issue. Maybe the court should have said, 'We're not going to take it, goodbye.'…Obviously the court did reach a decision and thought it had to reach a decision. It turned out that the election authorities in Florida hadn't done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day."
–Retired Justice Sandra Day O'Connor, in remarks April 26 to the editorial board of theThe Chicago Tribune, as reported in an article that day by Tribune writer Dahleen Glanton.
"We do know that she sided with the majority in the actual decision, which stopped the recounting in Florida and gave a one-vote majority in the Electoral College to the man who lost the national popular vote. The ruling was a huge stain on the court's reputation because it appeared to be – may well have been – blatantly partisan."
– Andrew Rosenthal, editorial page editor of The New York Times, commenting on Justice O'Connor's statementt, in an online column, "Taking Note," on April 29.
We checked the Constitution and...
Because the First Amendment provides a wide berth for free speech, especially about the way the government works, pundits – and even former judges – are entitled to rewrite history if they have a mind to do that. Both Justice O'Connor and The Times' Andrew Rosenthal have done some of that in their comments about the Supreme Court's decision in 2000 in Bush v. Gore, putting a constitutional end to that year's presidential election.
Recall the factual situation on the morning after the November election: Democrat Al Gore stood to receive 267 electoral votes and George W. Bush, 246, with the 25 electoral votes in Florida undecided. To win, one candidate had to get at least 270 electoral votes. If Gore won Florida, he would have 291; if Bush won that state, he would have 270 – just enough.
Gore had 48.4 percent of the popular vote nationwide, and Bush 47.9 percent (that total doesn't add to 100 percent because there were four minor candidates). The uncertainty over who had won Florida's popular vote (and thus all 25 of its electoral votes, under the winner-take-all formula) lingered for 36 days, until the Supreme Court issued its decision on the night of December 12, 2000.
When the Supreme Court ruled that further recounts of the vote could not proceed, Bush was ahead in the Florida popular vote, and when the official canvass was completed, Bush had 537 more votes than Gore – out of nearly 6 million total Florida votes between them.
Although Bush v. Gore will be debated for a long time to come, the reality is that election outcomes are decided under rules of law that govern vote-counting, and those rules routinely come into play when election-night counts turn out to be very close. No one can argue persuasively that the 2000 election was going to be settled by anything other than a legal decision. If it wasn't to be made by the Supreme Court, it would be made by lower courts. (The only chance there would have been for a political, not a legal decision, would have been if the electoral vote count had ended in a tie and the House of Representatives would settle it; given the numbers with Florida 's 25 in play, there was no chance of a tie.)
If, as Justice O'Connor has suggested, the Supreme Court had said that it was not going to take the case, there were at that point rulings by the Florida Supreme Court or by a federal appeals court that would have settled it, probably by allowing further recounting in Florida. It is impossible to imagine that America would have been content to let a lower court resolve what had become, for all intents and purposes, a constitutional crisis with time running out. In that circumstance, that is why there is a Supreme Court to settle constitutional meaning.
It is not clear what Justice O'Connor meant by saying that the court may have "added to the problem," but that is a political assessment, not a judicial one. The court does get into political trouble when it makes controversial decisions, particularly on an issue as momentous as how to decide the legalities of a presidential election contest. The court's decision did bring an end to the crisis, and however controversial that was then or may be in retrospect, American quickly learned to live with it.
And, whatever one may make of the presidency of George W. Bush, that history was not caused by the Supreme Court.
Many critics, including most recently Rosenthal, have suggested that Bush v. Gore stained the court's reputation because it might have been "blatantly partisan." The claim of a stain is much exaggerated; the kinds of decisions that actually do sully the court's good name are decisions that preserved slavery, saved racially segregated schools and other public facilities, and allowed imprisonment of citizens during wartime on no basis other than rampant bias and fear. Bush v. Gore does not come close to belonging in that group.
And there is no proof whatsoever that the justices who voted in the majority in the 2000 decision did so with the specific intent of assuring that a Republican would win. If they got it wrong, they got it wrong for legal reasons.
The constitutional and legal issues were fully aired, every step of the way, based on legal documents that were on full public display and on public hearings that were entirely open and were focused on the law. An accusation that a judge votes his or her political preferences is a very serious allegation, and for a federal judge might be, if proven, a valid basis for impeachment. Such a claim should not be offered as loose conjecture in an attempt to revise history.
If one is looking seriously for a real scapegoat in 2000, perhaps the constitutional culprit is the Electoral College itself.
Lyle Denniston is advisor on constitutional literacy at tthe National Constitution Center. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.