The case as the Court’s open wound
David Kaplan, in the 2019 episode on demystifying the Supreme Court, calls Bush v. Gore the best or worst example of the Court taking unto itself the role of decision-maker. He says there is no more open wound at the Court than Bush v. Gore, describing it as a festering sore, and he devotes a lot of attention to dredging it up in his book. He interviewed a majority of the justices on background, meaning he cannot quote them or indicate who agreed to talk to him, but he reports that the case remains a subject they do not discuss daily, weekly or annually yet cannot put behind them. Demystifying the Supreme Court (2019)
Kaplan’s objection is structural. In that instance, he says, the Constitution itself as well as a federal statute both explicitly describe what should happen when there is a disputed presidential election, and the answer is that Congress should decide. The Supreme Court still chose to get involved after one side appealed to it. Congress, he notes, did not even raise a peep; it could have filed a brief telling the justices that resolving the tie was its role and that the Court needed to stay out, but it pretty much said nothing. Kaplan says he was astonished by that when he wrote his book The Accidental President 20 years earlier, and he still is. Demystifying the Supreme Court (2019)
Kaplan identifies Justice Scalia as the chief offender in his book. Twenty years earlier, Scalia was in the majority in the 5-4 ruling stopping the recount in Florida and awarding the presidency to George Bush in effect. When asked about the ruling on college campuses, on C-SPAN or in a rare interview, Scalia would smile or smirk and say, “Get over it,” then explain that someone had to step in because we were becoming, in Kaplan’s quotation of him, “the laughingstock of the world.” Kaplan characterizes this as hubris and arrogance, and says he has read his Constitution front to back and can find no “international laughingstock” clause allowing the Supreme Court to step in when it thinks the country is moving too slowly. Demystifying the Supreme Court (2019)
Kaplan’s counterfactual is that the country was not in a constitutional crisis. It would have been just fine as Congress looked to get its act together and resolve who would be president and who would be vice president, whether that took a day or a month. If it took place after January 20th inauguration day, someone else would have been president for the moment — the Speaker of the House or the Secretary of the Treasury, or Congress could have appointed an acting president as the 22nd Amendment permits. He adds that he is pretty sure Bill Clinton would have been happy to stick around for a few extra weeks. The wheels of the Constitution and democracy had set up a mechanism, but Scalia and four other justices arrogated unto themselves the decision. Demystifying the Supreme Court (2019)
Judicial restraint and the predictable Court
Kaplan’s broader argument is that the Court helped weaken the political branches by intervening on so many key issues. Because the Court controls its own docket and does not have to hear any case, and because it decides it will have the last word on voting rights, on the presidential election that was a tie in 2000 between Bush and Gore, or on campaign finance, many in Congress ask why they should stick their necks out or take a political risk when the justices right across the street are going to make the decision. Demystifying the Supreme Court (2019)
He extends the point to the loss of neutral principles. He says he does not throw around the word “hypocrite” lightly, but when he presented his idea to the justices he talked to, one liberal and one conservative said the exact same thing to him: “I half agree with you.” The problem, he says, is that they all favor judicial restraint except when they do not. In modern times, he argues, you can predict the vote of almost every justice on the key social issues, and if you know how they will rule ahead of time, what is the point of having the Court. He lists Bush v. Gore, the gun control ruling, the same-sex marriage case, Citizens United about campaign finance, and Shelby County about gutting the Voting Rights Act of 1965 as cases where you kind of knew the votes ahead of time. Demystifying the Supreme Court (2019)
The Electoral College after Bush v. Gore
In the 2020 episode on whether we would know who the president is on November 4, Bob Zadek frames the modern Electoral College debate as one that probably started with some seriousness after the Bush v. Gore election in 2000 and elections before it. He notes that there have been, he thinks, five instances where the president elected through the Electoral College got less than a majority of the popular vote, the first being John Quincy Adams in 1824, elected by the House of Representatives without an electoral majority. In Zadek’s account, Bush v. Gore started in earnest an examination by many thoughtful people of whether the Electoral College was anachronistic, anti-small-d democratic, and a vestige of entitled white men’s vision of government 240 years earlier. Will We Know Who the President Is on November 4? (2020)
Peter Wallison, the guest, answers with the case for the existing system. The strongest argument against the Electoral College, he says, is the one that asks why, if we really have a democracy, we are not electing our president with a simple majority of the popular vote rather than through what in effect are 50 separate presidential elections brought together through the Electoral College. He calls that a very powerful idea at a time when we are sensitive to the importance of democracy. Will We Know Who the President Is on November 4? (2020)
Wallison’s strongest argument in support is that the Electoral College has created a stability in our politics that exists nowhere else and could exist nowhere else. He predicts that eliminating it would end the two-party system: there would be 10 or 12 parties, a Right to Life party and a Choice party, an anti-immigrant party and a pro-immigrant party, a pro-gun and an anti-gun party, plus wealthy people like Michael Bloomberg running their own campaigns. The winner would probably have 20% of the vote, which he says is much worse than less than 50%, and that person could not speak for the American people the way an Electoral College winner has been able to. He cites the 1992 election, when Clinton, Bush and a third candidate ran and Clinton got 43% of the vote, way below 50%, yet there was never a question about whether he was validly elected and could speak for the American people. Will We Know Who the President Is on November 4? (2020)
Wallison also describes the National Popular Vote movement as very partisan: only the Democrats have been pushing for it, no state controlled by the Republicans has voted to participate, and states with 196 electoral votes have voted through their state legislatures to send all of their electoral votes to the winner of the national popular vote even if their particular state did not vote for that person. Will We Know Who the President Is on November 4? (2020)
Bush v. Gore as a marker of activism
In the 2016 episode with Ilya Shapiro of the Cato Institute, a caller from San Francisco named Raymond raises Bush v. Gore in the course of challenging Shapiro’s list of restrained justices. Raymond says he knows Bork would have been on the side Scalia was on in Citizens United and probably Bush v. Gore and the voting rights case two years earlier, which he calls very activist, and which he says Scalia led in dismissing the part of the 50-year-old act that made it presumably illegal to change your voting laws in the South mostly. Ilya Shapiro on the Supreme Court in the Balance (2016)
Bob Zadek responds by noting that this is the act Rand Paul had reservations about in the early stages of his failed run for the presidency, and that Rand Paul was criticized for taking issue with the Civil Rights Act of the 1960s. The caller’s exchange with Zadek then turns to the Merrick Garland nomination and the Republican Senate’s refusal to hold hearings, which Raymond calls bad form and, if Trump wins, an obscenity they will get away with. Zadek presses him on whether he is making a political or a constitutional argument, and Raymond concedes he does not know if there is any constitutional requirement, noting that there were no hearings until 1916, for Brandeis, and then after that 1962. Ilya Shapiro on the Supreme Court in the Balance (2016)
Across episodes: the same case, different work
Bush v. Gore appears in three episodes, and what changes is the use to which it is put. In the 2016 episode it is a passing item on a caller’s list of activist rulings, deployed against Ilya Shapiro’s account of restrained justices. In the 2019 episode David Kaplan makes it the central exhibit of judicial overreach and the Court’s failure of neutral principles, supplying the detail about the Constitution and the federal statute assigning disputed presidential elections to Congress, the 5-4 ruling stopping the Florida recount, and Scalia’s “laughingstock of the world” explanation. In the 2020 episode Bob Zadek and Peter Wallison treat it as the historical trigger for the modern Electoral College debate, with Wallison arguing that the College’s stabilizing effect on the party system is the strongest reason to keep it. The excerpts show no development in the underlying disagreement; each speaker recruits the case to a different argument.
What the sources do not cover
The excerpts do not state the holding of Bush v. Gore in the justices’ own words, the amendment or statutory provision the majority relied on, or the names of the parties beyond Bush and Gore. They do not give the date of the decision, the identity of the four dissenters, or the terms of the remedy. The Garland nomination discussion in the 2016 episode is left unresolved, and the caller’s reference to the voting rights case two years earlier is not tied by any speaker to a case name.