May 15

Bush v. Gore

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The nine justices who decided Bush v. Gore.  From left to right, Justices Thomas, Scalia,

O'Connor, Kennedy, Souter, Breyer, Stevens, Rehnquist, and Ginsburg


In their complaints against the Warren Court, conservatives advocated a philosophy of "strict constructionism," under which Supreme Court Justices would interpret the law according to the mandates of the Framers.  In the modern world, however, that has proven an elusive goal, and the Rehnquist Court has been as interventionist as its 1960s predecessor, except with a different ideological bent.  Three themes that we have been studying over the past few weeks--the politicization of the Supreme Court, the growing use of the law by grassroots groups, and the impact of presidential scandal--all came together in the election of 2000.  An extraordinarily close and bitter contest, in which both Republican George Bush and Democratic Al Gore used the character of their future Supreme Court appointees as an issue, culminated in a virtual tie on Election Night.  After the votes were counted, less than 1,000 votes separated the two men in Florida, whose electoral votes would decide the election.
It soon became clear that the courts would decide the winner. The Gore squad demanded a hand recount of the ballots in several Democratic counties; the Florida secretary of state, Republican Katherine Harris, seemed to go out of her way to impede the progress of these counts; and so Gore's forces went to court. They twice won victories before the Florida Supreme Court to extend the deadline for counting the ballots, only to have the Supreme Court intervene in a highly controversial 5-to-4 decision that terminated the recounting and ensured a victory for Bush.  The decision, which seemed to contradict the Rehnquist court's preference for federalism and rested on an unusual interpretation of the equal protection clause, provoked widespread criticism from liberals and even from some conservatives; it also generated bitter dissents from Justices John Paul Stevens and Ruth Bader Ginsburg.
But, for sheer political drama, little can match the final hearing before the Supreme Court, and the audio, along with real-time transcripts, is available; click on Bush v. Gore after arriving on the Oyez site.   The hearing lasted 2 hours; given the importance of the question and the rare contemporary release of Supreme Court audio material, it is worth the effort to at least take a small listen.

Has the Supreme Court survived its intervention in the political process?   Commentator Charles Krauthammer argues that it has; USA Today legal reporter Tony Mauro is less certain.