The 'tragedy' of Bush v. Gore: Ten years later

The Supreme Court&#039;s Bush v. Gore decision is still being debated ten years later.

(Image credit: Corbis)

last updated 8 January 2015

Ten years have passed since the historic George Bush v. Al Gore case, says Jeffrey Toobin at The New Yorker, and conservatives — including Justice Antonin Scalia — say anyone who questions the Supreme Court's verdict should "get over it." The 5-4 majority decision that halted Florida's recount and handed the presidency to George W. Bush was characterized as a "one-off," a judicial "novelty item" that applied only to the "peculiar facts" of the 2000 election. But it was far more than that. In Bush v. Gore, justices who supposedly believed in "judicial restraint" set that aside in the name of politics, says Toobin. The case was "a revealing prologue to what the Supreme Court has since become." Here's an excerpt:

The echoes of Bush v. Gore are clearest when it comes to judicial activism. Judicial conservatism was once principally defined as a philosophy of deference to the democratically elected branches of government. But the signature of the Roberts Court has been its willingness, even its eagerness, to overturn the work of legislatures. Brandishing a novel interpretation of the Second Amendment, the Court has either struck down or raised questions about virtually every state and local gun-control law in the nation....

Many of the issues before the Supreme Court combine law and politics in ways that are impossible to separate. It is, moreover, unreasonable to expect the Justices to operate in a world hermetically cut off from the gritty motives of Democrats and Republicans. But the least we can expect from these men and women is that at politically charged moments — indeed, especially at those times — they apply the same principles that guide them in everyday cases. This, ultimately, is the tragedy of Bush v. Gore. The case didn't just scar the Court's record; it damaged the Court’s honor.