When asked about the decision in Bush v. Gore, Justice Antonin Scalia — one of the best legal minds in modern American history — tells questioners to “get over it.” That’s right, the Supreme Court decided the winner of a popular presidential election, and one of the architects of that decision wants people to not care about it anymore. Is he serious? I wish Scalia could just “get over” the fact that privacy is a right now, but nobody begrudges him the right to ask questions about it.

It’s the ten-year anniversary of the Bush v. Gore decision, and everybody is talking about it, in part because the Court does not talk about it. Writing in the New Yorker, Jeffrey Toobin tells us that in the decade since the five “conservative” justices stopped Florida’s recount, the Supreme Court has cited Bush v. Gore exactly zero times. Think about that: it’s been ten years since the Supreme Court picked the president, and the Court is kind of hoping everybody forgets about it. Bush v. Gore is like a stripper the Court killed in Vegas when it was there for a bachelor’s party. “She’s got no friends or family, strippers die all the time in Vegas, let’s get back to the hotel and NEVER SPEAK OF THIS AGAIN.”

But this isn’t some drunk broad you can drive into the Atlantic Ocean and hope everybody covers for you. This is a presidential election! And whether or not they talk about it, the effect of Bush v. Gore is very evident today — and not just because of the five SCOTUS votes that were more important than everybody else’s….

In the New Yorker, Jeff Toobin tries to get at the unspoken precedential effect of Bush v. Gore:

Bush v. Gore would resonate, in any case, because the Court prevented Florida from determining, as best it could, whether Gore or Bush really won. (Recounts of the ballots by media organizations produced ambiguous results; they suggest that Gore would have won a full statewide recount and Bush would have won the limited recount initially sought by the Gore forces.) But the case also represents a revealing prologue to what the Supreme Court has since become. As in Bush v. Gore, nominally conservative Justices no longer operate by the rules of traditional judicial conservatism…

The echoes of Bush v. Gore are clearest when it comes to judicial activism. Judicial conservatism was once principally defined as a philosophy of deference to the democratically elected branches of government. But the signature of the Roberts Court has been its willingness, even its eagerness, to overturn the work of legislatures. Brandishing a novel interpretation of the Second Amendment, the Court has either struck down or raised questions about virtually every state and local gun-control law in the nation. In Citizens United v. Federal Election Commission, decided earlier this year, the Court gutted the McCain-Feingold campaign-finance law in service of a legal theory that contradicts about a century of law at the Court. (Citizens United removed limits on corporate expenditures in political campaigns; the decision is, at its core, a boon for Republicans, just as Bush v. Gore was a decade ago.) When the Obama health-care plan reaches the high court for review, as it surely will, one can expect a similar lack of humility from the purported conservatives.

Obviously conservatives are going to disagree with Toobin here. But more than simply ushering in an new era of conservative judicial activism, I think Bush v. Gore stripped the last veneer of political impartiality off of the Court. While it’s been obvious for decades that justices act out of their own political beliefs as opposed to an objective reading of “the law,” Bush v. Gore really put that apolitical farce to rest.

Justice ain’t blind, she just wears a blindfold to keep you in the dark about what she’s looking at. That’s the real scar from Bush v. Gore, and it’s a scar that ABA president (and Boies Schiller partner) Stephen Zack desperately wants to heal. He writes an impassioned editorial in the New York Daily News:

The Dec. 12, 2000, ruling against Gore – the culmination of what was likely the most politically charged case ever decided by American courts – was very difficult for his supporters and attorneys. But we must now look ahead and beyond politics to ensure our courts remain strong, respected, fair and free of influence by whoever holds sway at the moment. Perhaps that’s why, today, David Boies (my law partner) and Ted Olson, antagonists in Bush v. Gore, are working together on the ABA Task Force for the Preservation of the Justice System to ensure our courts are protected, respected and adequately funded.

Lady Justice need not remove her blindfold and hold her finger in the air in order to feel the direction of the currently blowing winds. It is crucial, however, that she remain strong and healthy. That’s a message we must all get behind.

Sorry buddy, but that ship has already sailed. The message you want everybody to get behind no longer comports with any understanding of reality. Ever since Earl Warren pulled some random study with dolls out of his ass to strike down 100 years of settled segregationist law, we’ve been building towards a point where a Supreme Court would feel it had the authority to tell us who our president was going to be. Now that those floodgates are open, there’s nothing to stop them from telling New York that it has to deal with gun owners like they do in Montana, or from telling corporations they can spend whatever they want to help Republicans candidates get elected. Next, they’ll strike down health care or something, and we’ll continue living in a world where the confirmation for every SCOTUS nominee breaks down along party lines.

And wait until the wheel turns round and again there is a liberal majority. We’re going to have gays in the military, gays in adoption centers, gays in divorce court, gays sexing each other in Posner’s backyard while screaming “this is way more fun than being a priest!”

It’s all politics; Bush v. Gore proved that. That is its legacy. Both parties are dirty, both judicial philosophies are compromised. Both sides will shape “the law” to support whatever political outcome they prefer.

But I suppose we should just “get over” that too — right, Justice Scalia?

Precedent and Prologue [New Yorker]
Ten years after Bush v. Gore, the court system’s independence is under political attack [New York Daily News]


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