Bush v. Gore (idea)

How did the Supreme Court become the deciding authority on the 2000 election?

It is often assumed that the Supreme Court had the constitutionally vested authority to decide the contested 2000 election. In fact the question of who ultimately is responsible for arbitrating a close and hotly disputed election result is a constitutional gray area. Indeed Bush v. Gore was not the first time the Supreme Court was presented with an opportunity to “decide an election.” In 1876, the election of our President also hinged on a few key contested electoral votes. However, in this case the election was decided by a congressional "Electoral Commission." I contend that the 1876 election was decided by congressional committee rather than the Supreme Court itself because the Supreme Court at the time lacked the sufficient political capital to successfully render such a controversial decision, and that the 2000 Supreme Court was in a position of unique strength which empowered it to render a critical, momentous decision.

The Supreme Court in 1876 had limited prestige, being on the wrong side of public opinion on the Dredd Scott and subsequent Civil War era cases. The Taney Court in Dredd Scott issued an ambitious but ultimately failed attempt to single-handed settle the “slavery question.” Instead of accomplishing these goals, it succeeded in inflamming domestic division and precipitating the Civil War. Taney's contention that no law could outlaw slavery because such laws infringe upon the property rights of the slaveowner was ignored in the North, which passed and enforced laws outlawing the practice anyway. Later opinions during the Civil War, such as Merryman, protesting Lincoln's suspension of the writ of habeas corpus, fell upon the deaf ears of Lincoln's wartime republic. Continuing the pattern, the Reconstruction-era cases of Cummings v. Missouri and Ex parte Garland, on the constitutionality of mandatory loyalty oaths to the Union as a prerequisite of private sector employment were all disregarded as well. In blatant defiance of the Taney Court, these laws remained on the books for nearly 20 years. As a result of what Supreme Court historians call the "self-inflicted wound" of the Dredd Scott case and the subsequent period of emasculation, this was a Court the populace was accustomed to ignoring. Even if the 1876 election went to the Supreme Court, it would not have had the necessary weight of authority to break the political deadlock. As it were the idea that the digraced court should be empowered with the final say in the election was laughable to the powers that be of the time.

In contrast, the 2000 Rehnquist Court enjoyed considerable public prestige. Though the Supreme Court had tackled some difficult cases in the past half-century such as Brown v. Board of Education and Roe v. Wade, the Court had always managed to end up on the right side of history. In the former, its reasoning had become sacrosanct by the time of Bush v. Gore, and in the latter, the Supreme Court managed to chart a cautious course through the contradictory and ambiguous attitudes the public held on the uncomfortable question of abortion. Thus, it had the political capital necessary to render a conclusive decision – reflected in polls showing strong faith in the Supreme Court before the decision came down, especially compared to other avenues of resolution such as the Florida legislature or Congress. In a CNN/USA Today/Gallup poll, 61 percent of polled citizens indicated trust in the Supreme Court, 17 percent in Congress, 9 percent in the Florida Supreme Court, and 7 percent in the Florida legislature. It's true that prior to the decision the Gore campaign declared that it would abide by any Supreme Court decision - but this was merely the product of existing political realities, and itself only contributed minimally to the authority of the Court. The bottom line is that the weary electorate trusted the Supreme Court to decide something, anything. Thus the political fallout, while significant, was not nearly fatal - a post-decision NBC poll showed 43 percent of respondents declaring that the Supreme Court "remained objective" and a majority expressed relief that the ordeal was over.

It has become fashionable for conservatives - and some liberals, in the wake of Bush v. Gore - to decry the "judicial activism" that is somehow subverting the democratic process. The truth is that historically the Court has been a moderate force. As Alexander Hamilton pointed out, the Supreme Court has "neither the power of the purse (taxation) nor the sword (military)," and as such, is reliably tentative in its decisions. Cases in which the Supreme Court flouted clearly established public opinion - such as Lochner v. New York or Dredd Scott - have historically been safely ignored by a determined legislative and executive branch. It is a rare exception when the Court sticks its collective neck out in a controversial, very public case. Brown v. Board of Education is one such example - how the unproven Warren Court managed to make the country swallow that decision deserves another node entirely - and Bush v. Gore is a less estimable instance.