The Roberts Court Began With Bush v. Gore?

July 30th, 2014

In an earlier post, I noted that Erwin Chemerinsky incorrectly labelled Bush v. Gore as case by the Roberts Court. Bush v. Gore was decided in 2000 and CJ Roberts was confirmed in 2005. But maybe I was wrong.

David Cole, in his review of several recent books about the Supreme Court argues that the Roberts Court began with Bush v. Gore:

The Roberts Court, which just concluded its ninth term, was officially launched on September 29, 2005, when Justice John Paul Stevens administered the oath to the newly confirmed chief justice, John Roberts. In a more significant sense, however, the Roberts Court’s birth—or at least conception—should be dated five years earlier, to December 12, 2000. That’s the day the Supreme Court decided Bush v. Gore, ending a recount of the too-close-to-call Florida presidential vote, and ensuring that George W. Bush would become president with half a million fewer popular votes than Al Gore. The Court’s five conservatives—William Rehnquist, Anthony Kennedy, Antonin Scalia, Sandra Day O’Connor, and Clarence Thomas—relied on a wholly unprecedented theory of the Constitution’s guarantee of “equal protection of the laws,” which they announced would apply this one time only, to block the Florida recount, and President Bush took office.

Bush was reelected in 2004, this time without needing the Supreme Court’s help, and that meant that when Justice O’Connor announced her retirement and Chief Justice Rehnquist died in office in 2005, President Bush, not Al Gore or a successor, had the privilege of appointing two new justices and shaping the Court for years to come.

Cole then lists a parade of non-horribles that would have happened if President Al Gore replaced Rehnquist, with, I don’t know, Chief Justice Ruthe Bader Ginsburg, and added, why not, Associate Justice Diane Wood. And, to be sure, Justices Souter and Stevens probably would have retired sooner, giving Gore more choices. So let’s add Justices Kagan and Sotomayor for good measure. But would O’Connor have been so willing to retire early? Anyway, here’s the alternate reality:

Had a Democratic president been able to replace Rehnquist and O’Connor, constitutional law today would be dramatically different. Affirmative action would be on firm constitutional ground. The Voting Rights Act would remain in place. The Second Amendment would protect only the state’s authority to raise militias, not private individuals’ right to own guns. Women’s right to terminate a pregnancy would be robustly protected. The validity of Obamacare would never have been in doubt. Consumers and employees would be able to challenge abusive corporate action in class action lawsuits. And Citizens United v. Federal Election Commission, which struck down regulations on corporate political campaign expenditures and called into question a range of campaign spending rules, would have come out the other way.

But it was not to be.

Of course, a final recount  of all ballots would most likely given Florida to Bush, by a razor-thin margin. As the Washington Post reported in 2001:

In all likelihood, George W. Bush still would have won Florida and the presidency last year if either of two limited recounts — one requested by Al Gore, the other ordered by the Florida Supreme Court — had been completed, according to a study commissioned by The Washington Post and other news organizations.

But if Gore had found a way to trigger a statewide recount of all disputed ballots, or if the courts had required it, the result likely would have been different. An examination of uncounted ballots throughout Florida found enough where voter intent was clear to give Gore the narrowest of margins.

Interestingly, the litigation strategies of both Bush and Gore were probably counterproductive:

But an examination of the disputed ballots suggests that in hindsight the battalions of lawyers and election experts who descended on Florida pursued strategies that ended up working against the interests of their candidates.

The study indicates, for example, that Bush had less to fear from the recounts underway than he thought. Under any standard used to judge the ballots in the four counties where Gore lawyers had sought a recount — Palm Beach, Broward, Miami-Dade and Volusia — Bush still ended up with more votes than Gore, according to the study. Bush also would have had more votes if the limited statewide recount ordered by the Florida Supreme Court and then stopped by the U.S. Supreme Court had been carried through.

Had Bush not been party to short-circuiting those recounts, he might have escaped criticism that his victory hinged on legal maneuvering rather than on counting the votes.

In Gore’s case, the decision to ask for recounts in four counties rather than seek a statewide recount ultimately had far greater impact. But in the chaos of the early days of the recount battle, when Gore needed additional votes as quickly as possible and recounts in the four heavily Democratic counties offered him that possibility, that was not so obvious.