In 2000, Texas Governor George W. Bush and Vice President Al Gore competed in one of the closest Presidential elections in American history.
The race came down to one state, Florida, where the count was so close that the winner wasn’t known for weeks. As election workers counted and recounted the ballots, examining hanging chads and butterfly ballots in an effort to try and discern a voter’s intent, they were scrutinized by lawyers from both campaigns and millions following the proceedings from afar. The stakes couldn’t be higher. After all, these workers were, essentially, picking the next President.
Until the U.S. Supreme Court intervened.
Gore had been behind in Florida, but cut into the Bush’s lead after the state-mandated machine recounts. Under state law at the time, Gore could request hand recounts and did so, challenging the results in four Democratic counties.
The Bush campaign sued, arguing its 14th Amendment equal protection rights were being violated because only a small number of counties were being recounted and there were no uniform standards for accepting or rejecting ballots throughout the state.
The Florida Supreme Court turned down a demand from the Bush campaign to halt hand recounts, causing the Texas Governor to appeal to the U.S. Supreme Court.
At first glance, that seemed like a good thing for Gore. The conservative majority on the Rehnquist Court typically deferred to states and tried not to interfere with state court proceedings.
However, it was also a good sign for Bush that the Court was willing to take on the case — and not just because there was a conservative majority (in fact, there were 7 Republicans on the bench, but two of them, John Paul Stevens and David Souter, tended to vote with the two Democratic appointees, Stephen Breyer and Ruth Bader Ginsburg). Courts are not supposed to hear matters relating to political questions, and plenty of legal scholars have argued that Bush v. Gore was such a controversy (although others have argued that it was not). So, the fact that the Supreme Court was willing to hear the case at all probably meant that it was going to rule in Bush’s favor — otherwise it wouldn’t bothered to grant certiorari, right?
Indeed, that’s what happened. In a 5-4 decision, the Court’s three arch-conservatives (William Rehnquist, Antonin Scalia and Clarence Thomas) and two right-leaners (Anthony Kennedy and Sandra Day O’Connor) decided to step in and stop the recounts, overturning the Florida high court’s decision. The dissenting Justices were stunned by the departure from the norm, so much so that Ginsburg called them out in her dissent, stating: “Rarely has this Court rejected outright an interpretation of state law by a state high court.”
The majority backed Bush’s Equal Protection Clause argument and held that no recount could be completed in time before a federally mandated deadline for states to select its Presidential electors. “When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront,” the majority per curiam opinion stated.
The existence of an unsigned per curiam opinion, which is usually reserved for noncontroversial cases that don’t involve complicated or controversial constitutional or factual issues, was a strange development. After all, Bush v. Gore was a lot of things, but it was definitely not straightforward or simple. The majority even said so in its per curiam opinion: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”
That line, in particular, was heavily criticized and held up as an indication the Court was not acting in good faith. By essentially stating that Bush v. Gore should not be seen as binding precedent for future cases, the Court opened up itself to attacks and criticism for acting in an overtly partisan way. “This observation is the very antithesis of the rule of law,” Professor Clyde Spillenger wrote in UCLA Today. “The Court’s authority to decide such momentous questions rests on its ability to demonstrate that its reasoning is not just made for the occasion, but expresses a more universal norm. That is why, despite the fact that the Court could have made its conclusions persuasive, its actions instead constitute one of the sorriest chapters in its history.”
It could also leave the door open for future Courts to rule differently if a majority of Justices determine that getting to a particular political result is more important than judicial consistency. Time will tell if this becomes relevant after the 2024 Presidential election.
So, who was the decisive vote? It’s hard to say. O’Connor and Kennedy were typically viewed as the swing votes on this iteration of the Rehnquist Court, and the media, at the time, focused on O’Connor. In particular, it was widely reported that she got angry when the media initially called Florida for Gore because she wanted to retire under a GOP administration. Newly released memos from Justice Stevens show that she was influential early on in establishing a framework for the eventual opinion, circulating a memo prior to oral arguments that ended up shaping the decision.
Of course, recent scholarship has also shown that it was primarily Kennedy who wrote the opinion. Indeed, the line about “our unsought responsibility” tracks with his grandiose writing style which, to his critics, often came across as self-important and even arrogant.
Additionally, according to Joan Biskupic’s recent biography of O’Connor, she and Kennedy were pretty solidly in favor of Bush from the beginning — just as much, if not more than Rehnquist, Scalia and Thomas. So maybe, in this case, it was actually two people who helped swing the 2000 election. Or maybe even five.
Despite the Supreme Court’s decision, Gore still had some legal options at his disposal. The case was remanded to the Florida Supreme Court, and he could have tried to get them to restart the count in a manner consistent with the majority opinion. But with time running out and the understanding that Bush could simply appeal to the Supreme Court again and have them step in, Gore bowed to the seemingly inevitable and conceded the race. As with Richard Nixon in 1961, Gore presided over the electoral certification of his own loss and handled the situation with grace and humor.
Nevertheless, the scars from the 2000 election continue to haunt this country and have only deepened divisions and partisan resentment in the ensuing quarter century. This all culminated in January 6, 2021, when Trump supporters stormed the Capitol to try and halt the electoral certification of Joe Biden’s 2020 victory.
They were aided and encouraged by politicians and lawyers who tried several of the tactics used in the previously-listed entries. Senator Josh Hawley of Missouri announced he would object to the certification of the returns from several battleground states. Senator Ted Cruz tried to create an 1876-style electoral commission. Rudy Giuliani, Sidney Powell, Lin Wood and others filed lawsuits hoping to get in front of a Supreme Court with an even more dominant conservative majority than the one that ruled for Bush in 2000. Supporters in several states tried to dispute the official election returns by creating alternate slates of electors. Trump even floated a novel theory by claiming his then-Vice President, Mike Pence, could unilaterally reject the returns — something no other Vice President in the history of this country, be it a defeated nominee like Gore, Nixon or John Breckinridge, or an unscrupulous schemer like Burr ever dared to do.
It remains to be seen if we will see a repeat in 2024. In his Bush v. Gore dissent, John Paul Stevens hoped that “time will one day heal the wound to that confidence that will be inflicted by today’s decision.” It looks like that day is still very, very far away.
