The New Radicals: Republicans and their Activist Supreme Court

“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.”

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Precedent and Prologue

Comment
by Jeffrey Toobin, December 6, 2010

Bush v Gore was the beginning of Republicans’ use of Judicial Activism

Momentous Supreme Court cases tend to move quickly into the slipstream of the Court’s history. In the first ten years after Brown v. Board of Education, the 1954 decision that ended the doctrine of separate but equal in public education, the Justices cited the case more than twenty-five times. In the ten years after Roe v. Wade, the abortion-rights decision of 1973, there were more than sixty-five references to that landmark. This month marks ten years since the Court, by a vote of five-to-four, terminated the election of 2000 and delivered the Presidency to George W. Bush. Over that decade, the Justices have provided a verdict of sorts on Bush v. Gore by the number of times they have cited it: zero.

Both sides had their reasons for consigning the decision to history and leaving it there. In his concession speech on the day after the decision, Al Gore said simply, “It’s time for me to go.” He meant it, and he left politics for a life of entrepreneurship and good works. George W. Bush, for his part, found little reason to dwell on the controversial nature of his ascension to office, and in his memoir, “Decision Points,” he devotes less than a page to the Supreme Court decision. (“My first response was relief,” he writes of his reaction.) In public appearances, Antonin Scalia, a member of the majority in Bush v. Gore, regularly offers this message to people who question him about the decision: “Get over it!”

Even at the time, Bush v. Gore was treated as a kind of novelty item, a one-off decision that applied only to the peculiar facts then before the Justices. The majority itself seemed to want it that way. In the most famous sentence from the decision, the Justices wrote, “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” (Unlike most weighty decisions, Bush v. Gore had no single author and was delineated “per curiam,” or by the Court, a designation the Justices usually reserve for minor cases.) In light of all these admonitions to leave the case be, might getting over it be the best advice?

Actually, no. To return briefly to the distant world of chads, hanging and otherwise, it’s worth recalling what Bush v. Gore was about. The pervasive uncertainty about the results of the election in Florida—at the time, Bush led by five hundred and thirty-seven votes out of nearly six million cast—prompted the Florida courts, interpreting Florida election law, to order a statewide recount of all undervotes and overvotes; that is, ballots that indicated no Presidential preference or more than one. (Chads were the tiny paper rectangles that voters were supposed to push through punch-card ballots.) That recount had already begun on Saturday, December 9th, when five Justices—Scalia, William H. Rehnquist, Sandra Day O’Connor, Anthony M. Kennedy, and Clarence Thomas—issued a stay, barring the Florida authorities from continuing their labors. Three days later, the same five issued the per-curiam decision that stopped the recount once and for all.

What made the decision in Bush v. Gore so startling was that it was the work of Justices who were considered, to greater or lesser extents, judicial conservatives. On many occasions, these Justices had said