The Ghost of Bush v Gore

You will remember, of course, the remarkable Supreme Court decision, Bush v. Gore, which ruled that efforts to ensure every vote in the 2000 Presidential election was properly counted should stop, and effectively awarded the election to George W. Bush. This month we observe the eighth anniversary of the decision, which handed us a disaster called the Bush Administration. Thank you, Antonin Scalia, William Rehnquist, Sandra Day O'Connor, Clarence Thomas, and William Kennedy.

In future years, the Court majority's decision will be studied with the same head-shaking disbelief that is today limited to Plessy v Ferguson and Dred Scott v Sandford.

In Bush v Gore, the Supreme Court consciously and blatantly took action to ensure a political result to their own liking, using any legal argument they could find. The evidence of this is found in a bizarre sentence of the decision:

Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

Never in the history of the Supreme Court, until Bush v Gore, had a decision been made in which the Court attempted to limit the precedent value of its decision. Even they didn't think much of their legal reasoning in this case, and didn't want it applied elsewhere. They just knew they wanted the Republican to win.

Well, the joke is on them.

Today's NY Times reports that, eight years later, Bush v Gore is being cited as precedent in state courts around the country.

In a recent Circuit Court decision,

The dissenting judge on the three-judge panel criticized his colleagues for relying on “the Supreme Court’s murky decision in Bush v. Gore” in a case about the use of punch-card ballots in Ohio. The judge, Ronald Lee Gilman, pointed to the one-ride-only language and what he called the Supreme Court majority’s ideological inconsistency and lack of intellectual seriousness.

The judges in the majority were having none of that. “Murky, transparent, illegitimate, right, wrong, big, tall, short or small,” they wrote, “regardless of the adjective one might use to describe the decision, the proper noun that precedes it — ‘Supreme Court’ — carries more weight with us.”

“Whatever else Bush v. Gore may be,” Judge Boyce F. Martin Jr. wrote for the majority, “it is first and foremost a decision of the Supreme Court of the United States and we are bound to adhere to it.”

And I guess the joke has been, and continues to be, on us, too.