The Supreme Court Decision of the 2000 Election

[page last modified 25 February 2001]

Table of Contents

Bush v. Gore -- Documents

These were downloaded from CNN and are served here from my cache.

Various commentaries on the Supreme Court ruling

(The radio commentaries require RealAudio.)

Background

Much background can be obtrained from NPR and PBS archives of their news and talk shows.

Much of the background of this decision was assembled by the Red Rock Eater news service.

The series makes very interesting reading, showing a concerted campaign surrounding this election decision as well as a flurry of errors.  I would suggest reading in chronological order, rather than the reverse.  [At various times in that message log, it is suggested that Florida's voting systems are exceptionally bad.  However, see the note below about Florida.]

Garrison Keillor commentary

Of course Bush v. Gore is not funny but the decision does inspire comedy.

Other humor

My own opinion

I must second the opinion of a friend of mine at work who was applauding the entire recount process, the Supreme Court judgments, the actions of the Florida legislature, etc.  He considers this a code-coverage test for the US election process.  I believe we have learned a lot as a result, but if we don't act on what we learned, it will have been a wasted effort.  For example, we learned that Votomatic machines are unacceptable.  Will we see them used ever again in a US election?  It has become clear that voting mechanisms need to be user-tested before they are purchased.  Is there an independent testing laboratory?  Will there be (or will any current one be used)?  [See the section on voting procedures, below.]

More to the point of this web page, what have we learned about the Supreme Court?

Lawrence Tribe said on 12/12/00 that he was tempted to take the cheap shot by saying that he was shocked, shocked to read this decision.

I concur.

It is apparent to me that the US Supreme Court has shifted from the impartial and strongly academic Court, interested in Justice, that we found with the Earl Warren Court.  Probably as a reaction to Roe v. Wade, which was seen by some as an exercise of improper judicial activism, those who argued against judicial activism decided instead to stack the Court with activists on their side.  The results show up in this decision and in the fact that for years people have discussed which party will gain power by one vote or two in the Supreme Court.

It would be nice to think that with this fresh evidence of partisan Court behavior, we could make a special effort to restore the Court to impartial concern for Justice.  However, it is unlikely that that will be possible.  The bitter anger over Roe v. Wade is still fresh in the minds of many people on the right, and now this recent abuse of judicial authority has angered people on the left.  The inclination will be to treat the Supreme Court even more like the rag that you tie in the middle of a rope in order to play tug of war.  Instead of offering a fresh insight on our serious problems and divisions from a point of view neither side in the debate would have stopped to consider, the Court is just one more expression of the same two opposing viewpoints, and in that sense runs the risk of being a third house of Congress -- perhaps a House of Lords.

Voting procedures

Feedback from readers of this page

Some quotes from the four dissenting Justices

Of course, one should really read the whole decision.

Justice Stevens

``In the interest of finality, however, the majority effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent--and are therefore legal votes under state law--but were for some reason rejected by ballot-counting machines.''

``What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.

``I respectfully dissent.''

Justice Souter

``The Court should not have reviewed either Bush v. Palm Beach County Canvassing Bd., ante, p. ____ (per curiam), or this case, and should not have stopped Florida's attempt to recount all undervote ballots, see ante at ___, by issuing a stay of the Florida Supreme Court's orders during the period of this review [...].''

``To recount these manually would be a tall order, but before this Court stayed the effort to do that the courts of Florida were ready to do their best to get that job done. There is no justification for denying the State the opportunity to try to count all disputed ballots now.

``I respectfully dissent.''

Justice Ginsburg

``In sum, the Court's conclusion that a constitutionally adequate recount is impractical is a prophecy the Court's own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States.

``I dissent.''

Justice Breyer

``The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume.''

``By halting the manual recount, and thus ensuring that the uncounted legal votes will not be counted under any standard, this Court crafts a remedy out of proportion to the asserted harm. And that remedy harms the very fairness interests the Court is attempting to protect.''

``And, above all, in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public's confidence in the Court itself. That confidence is a public treasure. It has been built slowly over many years, some of which were marked by a Civil War and the tragedy of segregation. It is a vitally necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself. We run no risk of returning to the days when a President (responding to this Court's efforts to protect the Cherokee Indians) might have said, "John Marshall has made his decision; now let him enforce it!" Loth, Chief Justice John Marshall and The Growth of the American Republic 365 (1948). But we do risk a self-inflicted wound -- a wound that may harm not just the Court, but the Nation.

``I fear that in order to bring this agonizingly long election process to a definitive conclusion, we have not adequately attended to that necessary "check upon our own exercise of power," "our own sense of self-restraint." United States v. Butler, 297 U. S. 1, 79 (1936) (Stone, J., dissenting). Justice Brandeis once said of the Court, "The most important thing we do is not doing." Bickel, supra, at 71. What it does today, the Court should have left undone. I would repair the damage done as best we now can, by permitting the Florida recount to continue under uniform standards.

``I respectfully dissent.''

Footnotes



Carl M. Ellison; cme@acm.org