Saturday, December 12, 2020

Bush v. Gore + 20

It was 20 years ago today ... No, not Seargent Pepper, but Bush v. Gore, one of the worst, most strangely decided, and dangerous Supreme Court cases in my lifetime - indeed, in all of American history. (The "most dangerous branch" has made many really bad and dangerous decisions in my lifetime. But Bush v. Gore certainly has to count as one more of them.)

Bush v. Gore (in case anyone has forgotten) was the 5-4 patently partisan decision that effectively handed the presidency to George W. Bush, making him the first loser of the popular vote to be installed in the White House since Benjamin Harrison. It was an intrusion of the Supreme Court into an election dispute in a single state, an intrusion for which there was no obvious justification. (The constitution, of course, leaves the final adjudication of disputed electoral votes to Congress and suggests no role for the federal judiciary in the process at all.) 

Some might want to speculate whether, if the Supreme Court had minded it own business, we might have been spared the horror of endless wars in Afghanistan and Iraq and who knows what else. That however, is obviously speculation. Counter-factual historical speculation is interesting, but it remains mere speculation.

On the other hand, the damage done to the democratic character of American elections and to the trustworthiness of the Supreme Court was enormous.

Would the fear of future Court involvement in elections have been the weight it has been had Bush v. Gore never happened? Maybe more to the point, without the obnoxious precedent of Bush v. Gore, would President Trump and his sycophants have so confidently expected a Republican Court to rule in their favor, as Trump himself suggested back when Ruth Bader Ginsburg's seat suddenly became vacant?

Whatever its faults, the current Court's two decisions this week denying recourse and relief to two dubious lawsuits may suggest the Court has actually learned a lesson from its intrusion into electoral politics 20 years ago. 

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