25 years later: reflections on Bush v. Gore and the Supreme Court

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In the presidential election of 1876, the Democratic candidate (Samuel Tilden) received 50.9% of the popular vote and the Republican candidate (Rutherford Hayes) received 47.9%. In the days following the election, it was agreed that Tilden had won 184 electoral votes (one short of a majority), Hayes had won 165, and 20 votes from four states were disputed. 

A presidential commission consisting of 15 members was appointed to decide the disputed electoral votes. The eight Republican members of the commission, voting on strict party lines, awarded each of the 20 votes to Hayes, making him president.

The decision was widely viewed as election interference. Protests erupted. A shot was fired at Hayes’ home while he was there. Troops were called to Washington to maintain order. To pacify the Democrats, the Republicans agreed to prematurely end Reconstruction.

In 1877, Congress passed bipartisan legislation setting forth agreed procedures to decide fairly and finally any future presidential election disputes by having such disputes presented to Congress and counting only those electoral votes which the two houses of Congress agreed should be counted.

In 2000, the Democratic candidate (Al Gore) received 48.4% of the popular vote, and the Republican candidate (George W. Bush) received 47.9%. In the days following the election, it was agreed that Gore had won 266 electoral votes, Bush had won 246, and Florida’s 25 votes were disputed. Bush led Gore in Florida by 537 votes. In close elections, Florida law provided for manual recounts to confirm “the intent of the voter.” This was especially important in the many Florida counties that still used old punch-card machines, which were notoriously error prone.

On Thursday, Dec. 7, after a partial recount of four counties and full briefing, Barry Richards, representing Bush, and I, representing Gore, argued before the Florida Supreme Court. In its decision the following evening, that court agreed with me that certain votes that had been cast on time but excluded by Florida’s Republican secretary of state as recounted too late should be counted. This reduced Bush’s lead to less than 200 votes. The Florida Supreme Court also agreed with me that the entire state should be recounted. That court, however, rejected my argument that it should give the local canvassing boards guidance as to how to interpret Florida’s “intent of the voter” standard, appearing to accept Barry’s argument that the historical discretion accorded to the local boards had to be respected.

The recount commenced the following morning, and by shortly after noon on Saturday, it was on schedule (with the possible exception of one county where the Republican canvassing board members refused to show up) to be completed by Sunday evening. During Saturday morning, Bush’s margin continued to decrease, and Gore believed the recount would soon show him narrowly ahead. I was less certain, but hopeful. 

However, on Saturday afternoon, five Republican members of the U.S. Supreme Court ordered Florida to stop counting the votes. The five justices acted without a hearing or briefs on the merits. They gave no explanation as to what, if anything, was improper. The only explanation for stopping the vote count in mid-stream was given by Justice Antonin Scalia: if the vote count showed Gore winning and the court later invalidated it, Bush (and the court) would look bad. True enough. But obscuring the consequences of government action has never been seen as an appropriate goal in a free society. The four remaining justices (two Republicans, two Democrats) filed a bitter dissent. 

Gore and his whole team were shocked. For the first time in our nation’s history, the court was intervening to affect a presidential election. And it was doing so without a hearing – and without giving any explanation as to what error, if any, it believed was occurring.

Three days later, at 10:00 p.m. EST on Dec. 12, after accelerated briefing and oral argument before the court by me on behalf of Gore, Ted Olson on behalf of Bush, and Joseph Klock on behalf of Florida Secretary of State Katherine Harris, the same five justices held that Florida’s recount violated the equal protection clause because different canvassing boards interrupted the intent of the voter, making it more likely that a vote would be counted differently in some counties compared to others. 

The court further held that since Florida could not now complete a recount by the Dec. 12 “safe harbor” date, no further recount would take place. The majority ignored the procedures of the 1877 Act for resolving just such electoral college disputes. 

The four dissenting justices pointed out that the majority’s opinion was inconsistent with precedent, the rule of law, and the record below; that the federal issues were not substantial; that the court should never have taken the case in the first place; and that Dec. 12 was not a final date, and Florida, not federal judges, should choose whether Florida’s historical right to a recount outweighed any benefits of the safe harbor.

The issue was not whether manual recounts to determine the interest of the voter were a good idea (a question that can reasonably be debated). The issue was whether, in the middle of an election, the Supreme Court would change the rules Florida had followed for a century (and that 35 other states followed, as well).

Although widely criticized by both conservative and liberal legal scholars, the initial public reaction was somewhat muted. People did not take to the streets. No shots were fired. No troops were needed. No bargains cut.

In a gracious concession speech, Gore accepted the court’s decision and pledged his support for Bush as president. In his capacity as vice president presiding over the Senate’s count of the electoral votes, he even overruled objections to Florida’s slate of Republican electors. 

Scalia was right about one thing. By obscuring the consequences of their decision, the majority muted public outrage. It did not, however, mitigate the consequences of the decisions for the nation and the court itself. 

The immediate effect, of course, was to make Bush president, something that made more difference to our country at home and abroad than most expected at the time. Another consequence was to allow Bush to select two conservative successors to the five-justice conservative majority – which in turn preserved that conservative majority on the court, enabling such decisions as the overruling of Roe v. Wade; holding provisions of the bipartisan Voting Rights Act and campaign finance laws unconstitutional; protecting President Donald Trump from civil and criminal proceedings; and greatly expanding the president’s power, including over previously independent agencies.

Perhaps the most pernicious consequence has been the consequence Justice John Paul Stevens predicted – the effect of the decision on how the court is perceived and treated. 

America is a constitutional democracy. Perhaps the first, certainly the most influential, one in history. As a democracy, we are ruled by leaders we elect. But under our Constitution, those leaders are ruled by principles intended to be beyond their power to alter. Changes to the Constitution are hard to propose (requiring a two-thirds vote of both houses of Congress) and harder to pass (requiring a vote of three-fourths of the state’s legislatures).

The official guardians of our Constitution are the justices of the Supreme Court. They alone are the ultimate interpreters of its broad principles. And by changing those interpretations, they alone can modify, and even radically change, those principles without the time and super-consensus that a formal amendment requires. Using that power, the court decides, and changes, what the executive branch is permitted to do; what laws the states, and Congress itself, may enact; how power shall be divided between the states and the federal government, and between the executive and legislative branches, and even itself. 

It is uncertain whether our founders would have been prepared to give such awesome power to the justices explicitly, but early in our nation’s history, the justices declared such power to be theirs, and we have accepted it ever since. 

That acceptance is, in many respects, remarkable. The court is our least democratic institution. The justices are not elected to their positions, and in the vast majority of cases have never been elected to anything. Once appointed, they are virtually immune from removal. Their tenure is measured in decades, in most cases remaining in office long after an elected official, or one subject to recall, would have been retired.

It is, of course, the justices’ very insulation from public and political pressures that is intended to enable them to make neutral decisions that preserve the rule of law, and our constitutional rights. And it is because of the court’s critical role in doing so, and the political capital the court has built up over generations, that we have come to respect, not merely accept, its decisions. 

It is important to remember, however, that our acceptance of the court’s outsized role is neither permanent nor inevitable. The court has no army to enforce its decisions, no budget to finance its operations except the justices’ personal salaries. The executive can ignore the court’s decisions at will so long as he (and eventually she) retains the support of 34 senators out of 100. The executive and a bare majority of the Senate and House can, at any time, control and change the court’s decisions (and thereby our constitutional principles) simply by adding enough new justices of predictable sentiments. 

For decades, such changes to the court’s role were between remote and unthinkable. It was not that the court always avoided controversial decisions, or that we believed justices were without ideological biases. It was because we need the court and its historical role, and because we believed that the justices largely adhered to the rule of law – that decisions be reasonably predictable, and predictable without regard for the identity of the parties; that while a justice’s ideology might affect the principles used to decide a case, those principles would be applied neutrally. 

If past precedents are ignored in present cases; if principles used to decide a case today cannot be confidently predicted to decide cases in the future; if justices decide cases to achieve a political agenda, the court becomes a super-legislative council. Moreover, the more justices abandon precedent and neutral principles to impose their favored policies, the more the appointment and confirmation process becomes less an attempt to find neutral jurists and more an attempt to find reliable future votes. In the end, the more judges are viewed as unelected political actors, our acceptance of their decisions based on their assumed neutrality diminishes, perhaps to the vanishing point.  

In Bush v. Gore the five majority justices abandoned the principles of federalism and respect for states’ rights and state courts that they had long advocated – and to which they would soon return. In relying on assumptions not in the record below, in stopping the recount in mid-stream without waiting to see whether the procedures set up for appeals from canvassing board decisions eliminated any feared disparities in interpretation, and in permitting Bush to rely on arguments different from (and inconsistent with) his arguments below, the justices violated their own established rules and practices.

In Florida and in the Supreme Court Bush argued that Florida’s courts had violated Article II of the Constitution by changing the legislature’s intent with respect to vote counting. Although in briefs to the Supreme Court, Bush added (at page 40 of a 50-page brief) an equal protection claim, neither Ted Olson, nor I responding to it, thought this would be the basis of the court’s decision. It was just too at odds with the majority’s jurisprudence. 

Indeed, when asked at argument by Justice Anthony Kennedy “Where is the federal question?,” Ted replied it was a violation of Article II, making no mention of equal protection. However, as the argument progressed it was clear that Kennedy, a critical fifth vote for the majority, was not buying the Article II argument – the evidence was simply overwhelming that the Florida courts were merely continuing to apply settled Florida law. Despite Kennedy’s participation in the Saturday decision to prematurely suspend the recount, I began to think that we might actually prevail. But eventually Kennedy returned to his federal question inquiry. This time when Ted repeated his Article II claim, and Kennedy said: “Oh, and I thought your point was that the process [was] conducted in violation of the Equal Protection Clause,” alarm bells immediately went off in my head. It generally does not end well when a judge begins to reframe your opponent’s argument to find a way to decide for them.

Perhaps most striking, in applying an interpretation of the equal protection clause that they had repeatedly rejected, and in announcing in the decision itself that the principles they used to decide this case would not be used to decide future cases, the justices abandoned the core of the rule of law – that judges must apply consistent, neutral principles regardless of the party or cause before them, that in deciding a case for a party or cause they favor, they must be prepared to use the same principles to later decide cases for a party or cause they oppose.

When justices ignore precedents in an effort to remake society in their image, when the principles they articulate are good for that case only, when they attempt to influence the outcome of democratic elections, they ultimately undermine not only their credibility but the power of the court to play the critical role it has long played in our constitutional democracy.

Republican Justice Stevens wrote that the majority had destroyed “the Nation’s confidence in the judge as an impartial guardian of the rule of law.” Republican Justice David Souter reportedly privately described it as “the day the music died.” (Justice Sandra Day O’Connor, who provided one of the deciding votes, later expressed her regret that the court had taken the case.) It was to no avail. On Dec. 12, the one vote that counted was the deciding vote on the Supreme Court. 

Bush v. Gore was neither the beginning nor the end of the decline in the public’s confidence in the Supreme Court as a neutral judicial, as opposed to a partisan political, institution. It was, however, a notable way station, and one that, in an important way, contributed to, as well as reflected, that decline.   

I will never know whether I would have the restraint to decide a case whose outcome mattered greatly to me, contrary to the result I preferred, because of neutral principles that compelled a different result. I know it would be hard. I also know that that ability is important for the court, and for our constitutional democracy.