Why Bush v. Gore is irrelevant in 2020

Trump supporters hoping for Supreme Court intervention are going to be disappointed

President Trump.
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I cannot be the only person who spent some time last week reading about a certain case decided by the Supreme Court in December 2000. All but inscrutable as a legal text, dismissive of its own power to bind future judges, almost certainly giving rise to two decades of increasingly commonplace legal challenges to elections, and, of course, responsible for the elevation of one man to the presidency of the United States, Bush v. Gore is arguably the most significant case argued before the high court in my lifetime.

Even now it is still shocking. Justice Sandra Day O'Connor was reported as saying that a victory for Gore would delay her retirement plans. Chief Justice Rehnquist, who would die in office five years later, had also made it plain that he wished to resign under a Republican administration. (An unspoken precondition that seems to have been adhered to was that any outgoing justices appointed by Republicans would wait until Bush's second term before stepping down.) The speed with which the case was taken up at the behest of the late Justice Scalia, and the false impression of unanimity with which its apparent author Anthony Kennedy attempted to invest it by issuing it per curiam: All of these are or should be surprising even to those of us old enough to remember when the decision was handed down. While it would be an exaggeration to say that it confirmed popular accounts of the Supreme Court as a nakedly partisan institution, it certainly did no favors to anyone wishing to argue for the independence of the judiciary from electoral considerations.

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Matthew Walther

Matthew Walther is a national correspondent at The Week. His work has also appeared in First Things, The Spectator of London, The Catholic Herald, National Review, and other publications. He is currently writing a biography of the Rev. Montague Summers. He is also a Robert Novak Journalism Fellow.