Former Supreme Court Justice Sandra Day O’Connor sat down for an interview with the Chicago Tribune Editorial Board and seemed to express some regret that the Supreme Court had injected itself in the 2000 Presidential race by accepting Bush v. Gore for argument:
Retired U.S. Supreme Court Justice Sandra Day O’Connor hasn’t given much thought to which was the most important case she helped decide during her 25 years on the bench. But she has no doubt which was the most controversial.
It was Bush v. Gore, which ended the Florida recount and decided the 2000 presidential election.
Looking back, O’Connor said, she isn’t sure the high court should have taken the case.
“It took the case and decided it at a time when it was still a big election issue,” O’Connor said during a talk Friday with the Tribune editorial board. “Maybe the court should have said, ‘We’re not going to take it, goodbye.’”
The case, she said, “stirred up the public” and “gave the court a less-than-perfect reputation.”
“Obviously the court did reach a decision and thought it had to reach a decision,” she said. “It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”
O’Connor, who was appointed by President Ronald Reagan in 1981, was the first woman to serve on the high court. Though she tended to side with the conservatives, O’Connor was known as the court’s swing vote. Her vote in the 5-4 Bush v. Gore decision effectively gave Republican George W. Bush a victory over his Democratic opponent, then-Vice President Al Gore.
It’s worth noting, of course, that O’Connor’s position today could be the same that as it was when the case first came to the Supreme Court in December 2000. It only takes four Justices for a case to be accepted for appeal, and since those votes are always secret it’s unlikely we’ll ever know who the four (or possibly) more Justices who voted to take the case were. O’Connor may have been one of the Justices against taking the case but, once it was accepted for appeal, she was as bound as her other fellow Justices to make a ruling based on the facts and the law before them. In that respect, it’s worth noting that the options in front of the Court at the end of the day were fairly limited. Either they were going to allow the limited recounts that had been ordered by the Florida Supreme Court to go forward, or they were going to halt them. There really wasn’t a another avenue for the Court to take, and no way for them to dodge the responsibility for making a decision once the case had been accepted for appeal.
As for the decision to accept the appeal itself, I suppose I do understand why O’Connor may feel this way. The case was unusual for the Court in that it required the Justices to intervene in the political process to a far greater degree than they ordinarily do, and far more than the Justices are generally comfortable with. No matter which way the case was decided, it was inevitable that the Court was going to be seen as a political actor, especially since the legal issues involved in the case were fairly esoteric and not easily explained by a media that had been covering the ongoing controversy in Florida since the polls had closed a month and a half earlier. To the extent that the Justices are concerned about the reputation of the Court, the mere act of accepting the case inevitably meant that they’d take a reputation hit at some point. The fact that their decision led to the election of a President who many people now view negatively only adds to those negative feelings.
Despite this, though, and despite the comments of former Justice O’Connor, I think an argument can be made that the Court did the right thing by accepting Bush v. Gore. Had they not done so, it would have hardly been the end of the chaos that surrounded the 2000 election. Recounts, under vague and amorphous rules, would have had to go forward in select Florida counties. There likely would have been additional litigation in the state and Federal Courts down there. The media controversies would have continued, and the status of Florida’s 25 Electoral Votes, along with the outcome of the Presidential election itself, would have been up in the air. Indeed, even if one of the two candidates had conceded the result in an effort to end the uncertainty, it’s likely that doubt would have persisted because the legal certification of Florida’s Electoral College votes would have still been in doubt.* No matter how that process in Florida ended, there would have been a question of legitimacy hanging over whoever it was that ended up assuming the Presidency on January 20, 2001. By accepting the case, the Supreme Court brought some degree of certainty into the process and lent an air of legal legitimacy to the outcome of the election that was sorely lacking during the long period after Election Day. For that reason alone, I’d suggest that, in the end, history will judge that the Supreme Court did the right thing even if it did take a hit to its reputation in the short term.
* Indeed, I have always believed that Al Gore deserves a tremendous amount of credit for his reaction to the outcome of the Court’s decision in Bush v. Gore in which he accepted the results and recognized Bush as the winner of the election. A candidate who would have reacted by questioning the legitimacy of the Court’s decision would have been bad for the country as whole.
