Book Excerpt: 'Supreme Conflict'


The legal battle captivated the nation, as television networks aired endless images of election officials hand-counting the ballots, often holding them up to the light and squinting quizzically to discern the vote. Bush opposed the recount, arguing that it was illegal under state law and the federal Constitution. His partisans also made much of the fact that Gore and his lawyers had asked that a recount be conducted not in the entire state, but only in a few heavily Democratic Florida counties where they suspected those squinting at hanging chads might "find" enough additional votes to hand the election to Gore. Lower courts agreed with Bush, but the Florida Supreme Court ordered the recounts to continue.

Entire books have been written on the Supreme Court's decision in Bush v. Gore, but the outcome is not that complicated. The five most conservative justices joined together to block the recount of votes in Florida, essentially calling the election for George W. Bush. The conservatives believed that the Florida Supreme Court had brazenly thumbed its nose at an earlier unanimous U.S. Supreme Court decision by ordering the recounts to continue without any standards for conducting them. The conservatives said the process was so arbitrary that it violated basic concepts of equal protection, a secondary argument Bush's legal team had made. This was a startling decision from justices who had spent their careers resisting such broad constitutional claims.

The Court's four most liberal justices sided with Gore, refusing to join a more narrow opinion by Rehnquist that upbraided the Florida Supreme Court for ignoring their directives. The liberals said the justices should stay out of the process and emphasized states' rights—that the Florida courts and the Florida officials should handle a recount which would determine the presidential contest. It was a stunning claim coming from the four,who had vehemently opposed previous Supreme Court decisions giving states greater powers.

The decision produced deep divisions in the Court and outraged liberals, law professors, and editorial writers, all of whom accused the conservative justices (though not their liberal counterparts) of deciding the case based on their political views. Although every justice had taken a position at odds with his or her stance in the past, the blow to conservatives was particularly severe. The decision also seemed to represent the kind of result-driven outcome the conservative legal movement had long opposed.

The conservative legal movement prided itself on strictly following its methods of interpreting the Constitution, even when it produced results conservatives didn't like. But the unsigned opinion in Bush v. Gore seemed to many like a result-oriented approach, good for one day, and one case, only.

The Court's liberal justices still believe Bush v. Gore was a political decision, and they privately question whether the outcome would have been the same if it had been Gore v. Bush, with the Republican candidate calling for a recount. They contend that the Court would never have reviewed the case in the first place if the parties had been reversed.

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