Days of Change

Day 1246 – Bush v. Gore

April 3, 2012

Now that the Supreme Court is (or has been) under attack by the Obama Administration, their decision on Bush v. Gore has been brought up any number of times. The decision in 2000, in effect, ended the flawed recount process in Florida and allowed Bush to be certified the winner by the Florida Secretary of State. It is cited as bad law and an extra Constitutional process of making Bush president.

In reality, the Court was asked to do something it is normally never forced to do, make a hasty decision. Not only has the recount gone a month past election day, it was less that a month before the electors voted for the winner of the electoral vote, the “real” election. Even if Gore won  more popular votes, Bush was ahead in Florida and only a process of cherry-picking recounts (which 7 out of 9 Justices found against Florida law) gave Gore brief leads. The ultimate decision to stop recounting in lieu of Florida’s certification deadline was 5-4. Those 5 were Kennedy, O’Connor, Rehnquist, Scalia and Thomas. They were all Republican appointees. The dissenters were Breyer, Ginsburg, Souter and Stevens. Interestingly enough, Stevens was a Ford appointee and Souter was appointed by George H. W. Bush. Stevens didn’t even side with the other 6 Justices that the Equal Protection Clause was violated by different counting methods in different Florida counties. Plus, Ginsburg and Breyer were appointees of Gore’s president, Bill Clinton.

Did SCOTUS make a bad decision or did they correct the worse decision of a partisan lower court? Everyone has their own opinion. Kennedy and O’Connor voted with the majority, and they have been considered “swing” votes in most dealings of the court. Everyone suspects that any Obamacare decision will come down to Scalia, Thomas, Alito and Roberts vs. Ginsburg, Breyer, Sotomayor and Kagan with Kennedy creating the majority. But think about this. If the decision goes for Obama, it will include one Reagan appointee, two Clinton appointees and two Obama appointees. Two of those justices were appointed by the president who is arguing the case in public, and Kagan worked on the legislation before her appointment. Imagine if there were a Bush v. Kerry decision in 2004 and one of his appointees (let alone two) were part of a 5-4 majority.

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