Ten years later, revisiting the Supreme Court case of Bush v. Gore


In the current issue of The New Yorker, legal analyst Jeffrey Toobin LOOKS BACK on the ruling of 10 years ago in which the U.S. Supreme Court, “by a vote of five-to-four, terminated the election of 2000 and delivered the Presidency to George W. Bush.” 

An excerpt: 

What made the decision in Bush v. Gore so startling was that it was the work of Justices who were considered, to greater or lesser extents, judicial conservatives. On many occasions, these Justices had said that they believed in the preëminence of states’ rights, in a narrow conception of the equal-protection clause of the Fourteenth Amendment, and, above all, in judicial restraint. Bush v. Gore violated those principles. The Supreme Court stepped into the case even though the Florida Supreme Court had been interpreting Florida law; the majority found a violation of the rights of George W. Bush, a white man, to equal protection when these same Justices were becoming ever more stingy in finding violations of the rights of African-Americans; and the Court stopped the recount even before it was completed, and before the Florida courts had a chance to iron out any problems—a classic example of judicial activism, not judicial restraint, by the majority.



  1. Milton Waddams

    Bush v. Gore, Citizens United and Kelo are 3 examples of bad decisions by the SCOTUS. I’m not refering to the outcome of the case in Bush v. Gore, but that the Supremes even got involved. All three of these cases are black stains upon our democracy.

    If you’re unfamiliar with Citizens United, it was the recent decision that corporations and unions have the right to buy elections, in a nutshell.

    The Kelo decision ended private property in the United States, the court decided that government could use eminent domain to take property from one private owner and give it to another private owner. In this example, a person’s land was taken and given to a pharmaceutical company.

  2. The Supreme Court’s ruling on the case was Constitutionally sound. Seven Justices agreed that the recount violated equal protection in that the recount conducted included subjective and contradictory standards. Five Justices concluded the recount violated Article II of the Constitution in that States are given power to set the rules for presidential elections. Allowing the recounts to proceed would contravene the intent of the Florida legislature.

    “The main problem with Florida’s manual recount was that political operatives were given unbridled discretion; there were no objective rules, no guidelines, no uniformity, and few checks against abuse.” The Dirty Dozen by Levy & Mellor.

    While the 10th Amendment provides for enumerated power, the 14th Amendment provides for equal protection. In this case the Supreme Court was preventing Florida state officials from denying equal protection to voters. Also, the Florida Supreme Court had interpreted the state’s election laws in a manner that “impermissibly distorted them beyond what a fair reading required.” Again, the Florida legislature, not its courts, has exclusive power under Article II of the Constitution.

    I disagree with Milton regarding the CItizen United case and the conclusion that “corporations and unions have the right to buy elections”. Free speech is extended to everyone, not just individuals. Had it only been individuals, the First Amendment would have stated that. Corporations have just as much right to petition the government as do individuals. Citizens may not like the fact that corporations may get “more speech”, but free speech is free speech.

    However, I completely agree with Milton on the Kelo decision. This is a major departure from 100s of years of property law. Private property is of paramount importance as people need a place to stand. This case makes the Dirty Dozen list, which is the book I referenced earlier.

  3. Milton Waddams

    I guess that our disagreement with regards to Citizens United revolves more around corporate personhood than free speech. Additionally, I don’t believe money is necessarily speech.

    I appreciate your comments on the Bush v. Gore case. I’m looking forward to this book, as perhaps it will expand my understanding of the case.

    Kelo is just a travesty. And to add insult to injury Pfizer is abandoning its New London campus only 8 short years later:


  4. Milton – where do you get the idea of “corporate personhood?” Can corporations vote? No, only individuals can.

    To paraphrase on of Pat’s favorite sayings….the left is just worried that corporations will zap us of our precious body fluids.

  5. Milton Waddams

    For the purposes of rights, a corporation is treated as a person. For the purposes of responsibilities, a corporation is treated as a legal entity.
    You simply can’t have it both ways. With the limitation of individual liability comes a limitation of individual rights.

    I don’t buy into the whole right/left false paradigm, but with regards to our precious bodily fluids, you may want to check out this book…


  6. Milton – It still doesn’t make any sense to me. I guess some more specific examples of how a corporation has the same rights, but not the same responsibilities, as individuals might help.

    I bought the book for $6 from Amazon. It looks to be about 7 years old, and obviously there are several new laws, such as last year’s credit card reform, that might make the arguments presented a bit outdated. So I’ll give it a read, but for now I’m highly skeptical.

  7. Milton Waddams

    Responsibilities was probably not the right word. My main issue is that a corporation cannot be held accountable for its actions as a human being can be. A simplistic example:
    If I run someone over in my car, due to negligence, I will likely be charged with vehicular manslaughter and put in jail as a punishment. As a result of being in jail, my livelihood and life are affected.
    If a corporation kills someone due to its negligence, how can you put it in jail? Sure, you could put the CEO in jail, but how often does that happen? How can you punish an organization of individuals, except through fines? These fines are viewed as a cost of doing business.

    I think the solution is to recognize a corporation for what it is, property. Since the rights enshrined in our Constitution are not granted by the document itself, but by our existence as human beings, how can a legal structuring of property have rights? It could have privileges extended to it by charter, but not actual rights.

    Ultimately, my issue is probably more with the end result and fairness of corporate “rights” compared with individuals. It is a difficult question and has no easy or simple answer.

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