Don't Know What We Did To Deserve It, But Bush V. Gore Is Back

The past isn't dead. It isn't even past.

Sometimes I like to imagine what things might be like in the alternate universe where Al Gore won the 2000 presidential election. Maybe there was no Iraq War, because Gore's Cabinet wouldn't have been full of neocons. Following 9/11, the US still probably would have gone to war in Afghanistan, but without the shiny object of invading Iraq distracting everyone, the US might have caught up with Osama bin Laden in 2003 or 2004, not 2011. [ Some of us who are editing this post think there would have been no 9/11, but Dok is being obstinate about it even though he is wrong.] [And others of us who wrote the post think there's at best a better chance that 9/11 would have been avoided] And just think of how much farther the US would be toward addressing global warming if Gore had had even a single term to put us on that track? Haha, we know from science fiction that the actual outcome would somehow involve brain-eating worms from Neptune, because those "better" timelines always go wrong.

In any case, we at least know a little more today about how we ended up with George W. in the White House, because on Tuesday, the Library of Congress made available files from the late Supreme Court Justice John Paul Stevens, which CNN reports include a bunch of memos from the Supreme Court's wrangling over the Bush v. Gore decision, which handed the election to George W. Bush. If you have a spare 15 minutes today, go ahead and read the CNN piece, which looks at how Justice Sandra Day O'Connor joined up with Justice Anthony Kennedy to shape the unsigned opinion that was eventually released by the five Republican-appointed justices in the majority. The alliance between Kennedy and O'Connor shut out a far more radical opinion pushed by then-Chief Justice William Rehnquist.

Spoiler warning: The Kennedy/O'Connor option was bad enough, laying the groundwork for the openly partisan Court we have today. But the Rehnquist option, which he published as a concurring opinion, endorsed the fuckbonkers "Independent State Legislature Doctrine" that became the basis for Donald Trump and his cronies' attempt to overturn the 2020 election, was far far worse. Had Rehnquist's view prevailed in 2000, we can only assume the brain eating worms from Neptune would have been close behind.

On December 10, 2000, even before oral arguments in the case, O'Connor circulated a four-page memothat laid out much of the rationale for what went into the eventual opinion, particularly the argument for blocking the Florida Supreme Court's order for some counties to hand-count "undervotes" — ballots that may not have shown up in the machine count, but which had some evidence of the voter's intent, like a "hanging" or "dimpled chad," and OMG I am having 2000 flashbacks already. O'Connor's memo argued, as did the eventual opinion, that there was so much variation in how the counties were conducting the recounts that there was no way to ensure "equal protection of the law."

CNN summarizes thusly:

“The Florida Supreme Court provided no uniform, statewide method for identifying and separating the undervotes,” O’Connor wrote, referring to instances when machines had failed to detect a vote for president. “Accordingly, there was no guarantee that those ballots deemed undervotes had not been previously tabulated. More importantly, the court failed to provide any standard more specific than the ‘intent of the voter’ standard to govern this statewide undervote recount. Therefore, each individual county was left to devise its own standards.”

For that reason, O'Connor wrote, the recount system “in no way resembles the statutory scheme created by the Florida legislature” for choosing electors, so the recount should be shut down and the state's certification of the election for Bush, by just 537 votes, should be upheld.

Kennedy wrote to Rehnquist on December 11 to say

“Sandra’s memorandum sets forth a very sound approach” and said he wanted to build on it. He suggested he would point up how the varying recount practices breached the guarantee of equal protection.

Up to that point, CNN says, Rehnquist seems to have been planning to collaborate with Kennedy on a "composite opinion" that would include both the equal protection argument and Rehnquist's pet theory that the Constitution allows state legislatures to decide how to award electors without any interference from state courts, and regardless of how people actually voted, which is every bit as bizarre as it sounds. Once it became clear Kennedy wouldn't join him on that train to Crazyville, Rehnquist rewrote his own draft as a concurring opinion that was joined only by Antonin Scalia and Clarence Thomas.

CNN notes that Kennedy

had foreshadowed his reluctance to accept that theory during the Bush v. Gore oral arguments. “It seems to me essential to the republican theory of government that the constitutions of the United States and the states are the basic charter, and to say that the legislature of the state is unmoored from its own constitution, and it can’t use its court … (is) it seems to me a holding which has grave implications for our republican theory of government.”

But then, 20 years later, it sure looked to a lot of Trump supporters like a terrific way to keep him in office while claiming that the actual election results in several Republican-controlled states won by Joe Biden were simply too unknowable to rely on, so it would be best if the legislators simply stepped in to save the election from the voters. Guess we know where the brain-eating worms from Neptune ended up!

We also learn that Antonin Scalia was really pissed off that the four dissenting Democratic appointees had each submitted their own dissents saying that the Court's decision would undermine its legitimacy, presumably because that idea wouldn't occur to anyone if the justices in the minority had simply stayed quiet.

“Going home after a long day,” Scalia wrote to fellow justices when it was all over on December 12, “I cannot help but observe that those of my colleagues who were protesting so vigorously that the Court’s judgment today will do it irreparable harm have spared no pains – in a veritable blizzard of separate dissents – to assist that result. Even to the point of footnote 4 in Ruth’s offering (I call it the Al Sharpton footnote), alleging on the basis of press reports ‘obstacles to voting disproportionately encountered by black voters.’”

Oh, and big surprise, Scalia comes across as a big ol' racist, too! Ruth, why are you sounding like that awful man Al Sharpton? Scalia wasn't finished tut-tutting, though:

“I am the last person to complain that dissents should not be thorough and hard-hitting (though it would be nice to have them somewhat consolidated). But before vigorously dissenting (or, come to think of it, at any other time) I have never urged the majority of my colleagues to alter their honest view of the case because of the potential ‘damage to the Court.’ I just thought I would observe the incongruity. Good night.” He signed it, “Sincerely, Nino.”

Kennedy similarly sent a memo around to let his liberal colleagues know just how disappointed he was, not personally, no, but just for what they had done to the Court by badmouthing the very nonpartisan decision to hand the election to the Republican:

“I do not usually respond to dissenting opinions, and will not do so for the per curiam in this case. I take the occasion in this memo, however, to say that the tone of the dissents is disturbing both on an institutional and personal level. I have agonized over this and made my best judgment. Some of the dissenters in fact agree on the equal protection point, but take great pains to conceal that agreement. The dissents, permit me to say, in effect try to coerce the majority by trashing the Court themselves, thereby making their dire, and I think unjustified, predictions a self-fulfilling prophecy.”

What a sad state of affairs! And here we are, all these years later, with Democrats once more trying to undermine the legitimacy of the Supreme Court after it very soberly and non-partisanly eliminated women's rights to bodily autonomy. How disappointed Antonin Scalia would be in all of you.

[ CNN / NPR ]

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