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The Bush v. Gore Decision

Lawrence S. Wrightsman

in The Psychology of the Supreme Court

The decision by the Supreme Court in Bush v. Gore will forever be mentioned as one of its most significant. On December 12, 2000, it curtailed the recounting of votes in Florida, meaning that George ... More

The decision by the Supreme Court in Bush v. Gore will forever be mentioned as one of its most significant. On December 12, 2000, it curtailed the recounting of votes in Florida, meaning that George W. Bush had been elected president. This chapter begins with a chronology of events leading up to the decision. It then summarizes the opinion, describes criticisms and other reactions, and seeks to explain the outcome from the different models of decision-making described earlier in this book.Less

Law and Politics: The Journey to Bush v. Gore

G. Edward White

in Law in American History, Volume III: 1930-2000

Bush v. Gore, when it was first decided, was widely criticized by commentators as an unjustifiable intervention by the Supreme Court into the Florida electoral process in the 2000 presidential ... More

Bush v. Gore, when it was first decided, was widely criticized by commentators as an unjustifiable intervention by the Supreme Court into the Florida electoral process in the 2000 presidential election. Two decades later, the case seems much less significant, and arguably less controversial. The chapter traces the “journey” of the Supreme Court toward Bush v. Gore, which consisted of a combination of its abandoning the “political question” doctrine, which posited that the Court should avoid reviewing legislative decisions affecting the redistricting of voters in political elections, and the unique circumstances of the 2000 presidential election in Florida and Florida’s electoral processes.Less

Not as Bad as Plessy. Worse.

Jed Rubenfeld

in Bush v. Gore: The Question of Legitimacy

This chapter addresses Bush v. Gore strictly from a legal point of view. It discusses why Bush v. Gore differs profoundly from cases like Roe or Plessy. It argues that the Bush v. Gore majority ... More

This chapter addresses Bush v. Gore strictly from a legal point of view. It discusses why Bush v. Gore differs profoundly from cases like Roe or Plessy. It argues that the Bush v. Gore majority rendered an enormously illegitimate decision. It further suggests that other decisions rendered by the majority can no longer be taken seriously as matters of constitutional principle.Less

Partial (but not Partisan) Praise of Principle

Cuido Calabresi

in Bush v. Gore: The Question of Legitimacy

This chapter discusses the rather complex but crucial role of principle in judicial decision making. It begins with a sketch of three possible opinions that might have resolved Bush v. Gore in a ... More

This chapter discusses the rather complex but crucial role of principle in judicial decision making. It begins with a sketch of three possible opinions that might have resolved Bush v. Gore in a principled way—one favoring Bush, one Gore, and one indeterminate at the time the Supreme Court decided the case. It is argued that the Court failed to take any of these models seriously, awarding the presidency without committing itself to any coherent constitutional principle. While unprincipled decision making may sometimes be acceptable, even wise, the problem confronting the Court did not remotely authorize such a breach with established judicial norms. It is only by committing themselves even more firmly to legal principle that federal judges may ultimately undo the harm caused by the aberrational character of the Supreme Court's decision.Less

Bush v. Gore

Lackland H. Bloom

in Do Great Cases Make Bad Law?

Bush v Gore brought settlement to the dispute over the vote count in Florida in the presidential election of 2000 which in turn determined that George W. Bush would become the next President. A case ... More

Bush v Gore brought settlement to the dispute over the vote count in Florida in the presidential election of 2000 which in turn determined that George W. Bush would become the next President. A case in which the Court determines the outcome of a presidential election is indisputably a great case. The chapter discusses the complicated series of events that placed the case of Bush v Gore before the Supreme Court. It attempts to explain why the Court did not hesitate to hear the case even though it presented a significant risk to the Court’s credibility and reputation. The chapter explores both the Equal Protection rationale relied upon by seven justices as well as the Article II theory supported by the Rehnquist plurality. Finally the chapter addresses the most controversial aspect of the case—why did the Court end the recount procedure immediately as opposed to giving Florida officials one final opportunity to recount the votes?Less

An Unreasonable Reaction to a Reasonable Decision

Charles Fried

in Bush v. Gore: The Question of Legitimacy

This chapter discusses the Supreme Court's decision in Bush v. Gore. It argues that the case was correctly decided. It attempts to explain the reasonableness of Bush v. Gore, and its rightful place ... More

This chapter discusses the Supreme Court's decision in Bush v. Gore. It argues that the case was correctly decided. It attempts to explain the reasonableness of Bush v. Gore, and its rightful place among the large number of important Supreme Court decisions on which reasonable minds might differ.Less

An Ignored Jurisprudence: Bush v. Gore

Edward A. Jr. Purcell Jr.

in Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon

This chapter examines Justice Antonin Scalia’s actions in the notorious case of Bush v. Gore. There, five conservative justices voted to stop the recount of the Florida vote in the election of 2000 ... More

This chapter examines Justice Antonin Scalia’s actions in the notorious case of Bush v. Gore. There, five conservative justices voted to stop the recount of the Florida vote in the election of 2000 and make George W. Bush president. The chapter outlines the position of the justices and focuses on the two opinions that Scalia joined, a per curiam for seven relying on the Equal Protection Clause and a concurrence by Chief Justice William Rehnquist for three of the seven based on Article II. The chapter argues that both of those opinions contradicted virtually all of Scalia’s jurisprudential principles, including those involving standing and the political question doctrine. Further, it argues that both of those opinions—together with the solo opinion Scalia wrote supporting a stay of the Florida recount and certain other contextual factors—demonstrate that Scalia’s actions in the case were deeply personal and inspired by his intense desire to see the Republican candidate win the election.Less

Conclusion Modern Conservatism and Judicial Power

in The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism

The liberal and Democratic support for the Court took a temporary hit from Bush v. Gore, but it quickly rebounded and is likely to remain strong over the long term, in large part because Justices ... More

The liberal and Democratic support for the Court took a temporary hit from Bush v. Gore, but it quickly rebounded and is likely to remain strong over the long term, in large part because Justices O'Connor and Anthony Kennedy have preserved so much of the Warren Court legacy. The nation's ever-firmer commitment to rights-based activism has undermined the continued conservative calls for judicial restraint in contexts such as abortion and gay rights. Contemporary judicial conservatism is a rights-based conservatism. When the conservative justices have asserted their own power, they have generally justified such assertions on either originalist or rights-protecting grounds. If Bush v. Gore merits criticism, it is because it reflected an imperious vision of the judicial role that has characterized the current Court more generally, and not solely because it was a partisan decision in a particular case.Less

No Equivocation: George W. Bush

Harold H. Bruff

in Untrodden Ground: How Presidents Interpret the Constitution

George W. Bush became president when the Supreme Court resolved an election dispute in his favor in Bush v. Gore. His Vice President, Dick Cheney, became the most powerful one in American history. ... More

George W. Bush became president when the Supreme Court resolved an election dispute in his favor in Bush v. Gore. His Vice President, Dick Cheney, became the most powerful one in American history. After the 9/11 attacks, Bush declared a war on terror and conducted it aggressively. He obtained congressional authorization in the AUMF to use force against al Qaeda. He detained suspects, suspended the Geneva Conventions, conducted warrantless electronic surveillance, and authorized harsh interrogation methods. He asserted exclusive executive power that Congress could not control, and emphasized secrecy. He used signing statements extensively. The Supreme Court and Congress eventually constrained his unilateral initiatives. He obtained authorization for a war against Iraq based on false information. He neglected his faithful execution duty regarding the Iraq occupation and the reaction to Hurricane Katrina.Less

Justice and Elections

Peter Margulies

in Law's Detour: Justice Displaced in the Bush Administration

This chapter examines the Bush administration's election-related legal detours, with partticular emphasis on its attempts to pressure prosecutors such as David Iglesias, United States Attorney for ... More

This chapter examines the Bush administration's election-related legal detours, with partticular emphasis on its attempts to pressure prosecutors such as David Iglesias, United States Attorney for New Mexico, to ignore long-standing rules and traditions insulating federal prosecutors from politics. It also considers the administration's disregard for the value of prosecutorial discretion and discusses the Supreme Court ruling in Bush v. Gore, which addressed vote dilution and vote suppression concerns. Finally, it analyzes the Bush administration's bias in the prosecution of public officials and how the Department of Justice carried out political prosecutions within a short period of time prior to elections.Less

Into the New Century, 2000–2004

James M. Denham

in Fifty Years of Justice: A History of the U.S. District Court for the Middle District of Florida

This chapter begins with the confused presidential election of 2000 and disputed vote totals in Florida. Some litigation in the Middle District involving counting of the votes is included in the ... More

This chapter begins with the confused presidential election of 2000 and disputed vote totals in Florida. Some litigation in the Middle District involving counting of the votes is included in the chapter. George W. Bush’s justice department is introduced. The September 11 terrorist attacks and their impact on federal law enforcement is discussed. The Bush Administration’s reaction to the attacks, its subsequent “War on Terror,” the passage of the Patriot Act, and the War in Iraq had a transformative effect on American society and the Middle District of Florida. The Middle District’s reaction to the attack and the heightened security measures are covered. Extensive coverage of the U.S. Attorney’s office is included. The chapter then turns to the unhealthy conditions (sick courthouse syndrome) in the various courthouses. The construction of a new courthouse in Orlando is discussed. A number of corruption cases are discussed, including the Jacksonville Police Department and several other agencies receiving federal funds are chronicled. The chapter concludes with the implementation of the Case Management/Electronic Case Files System (CM/ECF) by the Middle district clerk’s office as well as how the system functioned during the four hurricanes that swept through the district in 2004.Less

6 Justice and Elections

Peter Margulies

in Law's Detour: Justice Displaced in the Bush Administration

This chapter examines the Bush administration's election-related legal detours, with partticular emphasis on its attempts to pressure prosecutors such as David Iglesias, United States Attorney for ... More

This chapter examines the Bush administration's election-related legal detours, with partticular emphasis on its attempts to pressure prosecutors such as David Iglesias, United States Attorney for New Mexico, to ignore long-standing rules and traditions insulating federal prosecutors from politics. It also considers the administration's disregard for the value of prosecutorial discretion and discusses the Supreme Court ruling in Bush v. Gore, which addressed vote dilution and vote suppression concerns. Finally, it analyzes the Bush administration's bias in the prosecution of public officials and how the Department of Justice carried out political prosecutions within a short period of time prior to elections.Less