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bush v gore
The Right-Wing Supreme Court Will Save Donald J. Trump Just Like It Saved George W. Bush
In the end, politics and not the law will lead them to rescue Trump from the insurrectionist label.
Dec 23, 2023
Is the United States Supreme Court really a court in the strict sense of the term? Or is it a political council that yields to the ideologies of its nine unelected members? That’s the overriding question as the high tribunal reviews the Colorado Supreme Court’s ruling in Anderson v. Griswold, which disqualifies Donald Trump from appearing on that state’s presidential primary ballot under the insurrection clause (Section Three) of the 14th Amendment.
Courts are supposed to adjudicate issues based on the facts and the applicable law, without “fear or favor,” as the cliché goes. Political bodies, by contrast, decide issues on the basis of favored outcomes. The U.S. Supreme Court clearly falls into the latter category.
No decision in recent history revealed the political nature of the Supreme Court more starkly than its 2000 ruling in Bush v. Gore, which handed the presidency to George W. Bush. Anderson v. Griswold promises to follow in Bush v. Gore’s footsteps.
Bush v. Gore halted an ongoing recount of the vote in Florida, depriving the voters of that state, and by extension voters in the entire country, of their right to a fair determination of the true winner of the election. To justify its decision, the court’s five-member majority invented a theory that the use of different standards of vote counting in different Florida counties violated the Equal Protection Clause (Section One) of the 14th Amendment.
The truth was the exact opposite. If anything, equal protection principles required the recount to be completed. As Justice John Paul Stevens lamented in dissent:
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.
Only the corrupt Clarence Thomas remains from the panel that decided Bush v. Gore. The current court is exponentially more conservative, dominated by six hardcore Republicans, including three nominated by Trump himself. They will find a way to overrule, dismiss or otherwise limit the Colorado Supreme Court’s Anderson decision even if they have to distort the clear meaning of Section Three of the 14th Amendment, the language of which provides:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
The Colorado Supreme’s opinion is a meticulously crafted 213 pages long. On the issue of whether Trump engaged in insurrection within the meaning of the 14th Amendment, the court held:
[T]he record amply demonstrates that President Trump fully intended to—and did—aid or further the insurrectionists’ common unlawful purpose of preventing the peaceful transfer of power in this country. He exhorted them to fight to prevent the certification of the 2020 presidential election. He personally took action to try to stop the certification. And for many hours, he and his supporters succeeded in halting that process.
On the question of whether presidents are officers of the United States, the court concluded:
[T]he plain meaning of “office . . . under the United States” includes the Presidency; it follows then that the President is an “officer of the United States… Indeed, Americans have referred to the President as an ‘officer’ from the days of the founding… Section Three’s drafters and their contemporaries understood the President as an officer of the United States.
The U.S. Supreme Court’s Republican justices like to describe themselves as “textualists” and “originalists” who strictly adhere to the original and plain meaning of legal texts. If they remain true to their stated principles in Anderson, they will uphold the Colorado ruling.
Sadly, the Republican justices of our highest court are above everything else political actors who have risen to their preeminent positions by demonstrating their fealty to conservative causes. In the end, politics and not the law will lead them to rescue Trump from the insurrectionist label.
The only effective way to halt Donald Trump and the neo-fascist movement he leads is to vote him down next November and build a lasting counter-movement of the left. That is a tall order for supporters of democracy — and time is running out.
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Memo Reveals How Sandra Day O'Connor Helped Get George W. Bush to the White House
The right-wing justice sought to influence the opinions of others on the high court even before they heard arguments in Bush v. Gore.
May 03, 2023
Former U.S. Supreme Court Justice Sandra Day O'Connor played a greater role than previously known in handing the highly contentious 2000 presidential election to George W. Bush, a document released Tuesday by the Library of Congress revealed.
It has long been known that O'Connor—who was appointed by former President Ronald Reagan and was the first woman to serve on the Supreme Court—wanted Bush to win the 2000 election, at least in part because of her right-wing views; her admiration for his father, former President George H. W. Bush; and because she wanted to retire after a Republican president nominated her replacement.
However, the newly released documents—part of a trove of former Justice John Paul Stevens' papers—include a four-page memo O'Connor sent to her colleagueson December 10, 2000, even before they heard arguments in Bush v. Gore. Her memo laid the groundwork for the controversial 5-4 ruling that stopped Florida's court-ordered recount in a too-close-to-call contest between Bush and then-Vice President Al Gore and gave the presidency to the Republican Texas governor.
In her memo, O'Connor attacked the unanimous November 21, 2000 Florida Supreme Court decision that the results of manual ballot recounts in Miami-Dade, Broward, and Palm Beach counties must be included in the final state tally, while giving the three counties five days to certify their results.
"Before there was 2020 there was 2000."
During that period, Bush's legal team appealed to the U.S. Supreme Court while self-described "dirty trickster" Matt Schlapp and future seven-count felon Roger Stone led an effort to fly hundreds of paid operatives to Florida to harass and intimidate Miami-Dade officials—the so-called "Brooks Brothers Riot"—in a bid to thwart their court-ordered work.
"I am concerned that the Florida Supreme Court transgressed the lines of authority drawn by Article II of the federal Constitution in substantially changing the state Legislature's statutory scheme for the appointment of presidential electors," O'Connor wrote.
"The Florida Supreme Court provided no uniform, statewide method for identifying and separating the undervotes," she noted, a reference to instances when voting machines could not read ballots.
\u201cBefore there was 2020 there was 2000 ....\n\nhttps://t.co/8gHDBXXdgK\u201d— Jocelyn Benson (@Jocelyn Benson) 1683072858
"Accordingly, there was no guarantee that those ballots deemed undervotes had not been previously tabulated," O'Connor asserted. "More importantly, the court failed to provide any standard more specific than the 'intent of the voter' standard to govern this statewide undervote recount. Therefore, each individual county was left to devise its own standards."
O'Connor noted that the Florida Legislature "has created a detailed, if not perfectly crafted statutory scheme that provides for the appointment of presidential electors by direct election," and that "the Legislature has designated the secretary of state as the 'chief election officer.'"
Florida's secretary of state at the time, Katherine Harris, was not only a Republican, she also co-chaired Bush's campaign in the state. On November 26, 2000 Harris declared Bush the winner in Florida by 537 votes, even though there were counties still tallying ballots.
Ignoring this obvious conflict of interest, O'Connor said the Florida Supreme Court "disregarded the secretary of state's delegated duty to exercise her discretion to determine whether to accept the state's late returns" and whether a manual recount requested by Gore was warranted.
Gore had asked for recounts in four heavily Democratic counties amid drama over dimpled, pregnant, and hanging chads; butterfly and caterpillar ballots; write-in votes; overcounts; undercounts; and a bewildering barrage of strange new terms. Some political commentators have argued that Gore's failure to request a statewide manual recount may have been a fatal miscalculation.
\u201cA reminder that the Republicans successfully stole a presidential election 23 years ago...and their hackish Justices on the Supreme Court played a key role in their doing so. https://t.co/2qkSr2svmt\u201d— @Ben_Alpers@mastodon.online \ud83d\uddfd (@@Ben_Alpers@mastodon.online \ud83d\uddfd) 1683070110
The day after O'Connor circulated her memo, Justice Anthony Kennedy, another Reagan appointee and frequent swing vote, wrote to right-wing Chief Justice William Rehnquist endorsing her "very sound approach."
Rehnquist—who was appointed by Republican former President Richard Nixon—was a proponent of what is now called the independent state legislature theory (ISLT), the fringe right-wing notion that state lawmakers alone can regulate federal elections. Hard-right Justices Antonin Scalia and Clarence Thomas, two of the five votes for Bush, also embraced the dubious theory.
Prominent purveyors of former President Donald Trump's "Big Lie" that the 2020 presidential election was "stolen" have cited ISLT when pushing state lawmakers to help overturn President Joe Biden's Electoral College victory. Thomas' wife Ginni Thomas—who in 2000 solicited resumes for positions in the presumptive Bush administration before her husband cast his decisive vote in Bush v. Gore—unsuccessfully pressed Arizona state lawmakers to invoke ISLT in service of Trump's ill-fated effort to reverse his 2020 loss.
Notably, Bush's legal team in Bush v. Gore included current right-wing U.S. Supreme Court Justices John Roberts, Brett Kavanaugh, and Amy Coney Barrett. Moore v. Harper, a North Carolina voting rights case currently before the court, could decide the legal validity of ISLT.
\u201cOne member of George W. Bush's legal team was especially enthusiastic about the "independent state legislature" theory: Brett Kavanaugh. \n\nHere he is endorsing it in 2000. \n\nNow Kavanaugh gets a chance to write it into law. Talk about a long game. https://t.co/VlnfRdeCy6\u201d— Mark Joseph Stern (@Mark Joseph Stern) 1670424929
On December 12, 2000 the justices ruled in a 7-2 per curiam opinion that Florida's court-ordered recount must be stopped on equal protection grounds, and 5-4 that there was no other way to recount all of the contested votes in a timely manner. Rehnquist, Kennedy, O'Connor, Scalia, and Thomas voted in favor of Bush, while Justices Ruth Bader Ginsburg, Stephen Breyer, David Souter, and Stevens dissented.
In his stirring dissent, Stevens presciently noted that "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 judges as an impartial guardian of the rule of law."
Four out of the five justices who sided with Bush were accused of conflicts of interest: Rehnquist and O'Connor were septuagenarians who had stated their desire to retire during a Republican presidency—the latter reportedly exclaimed "this is terrible" in response to a TV news report showing Gore leading on election night; Thomas' wife was headhunting personnel for a potential Bush administration; and two of Scalia's sons worked for law firms representing Bush. None of the four justices recused themselves from Bush v. Gore. Bush later nominated Eugene Scalia for U.S. labor solicitor.
\u201cWhen I was a kid I really really looked up to the Supreme Court justices. We all learned how they get lifetime appointments to make sure they can\u2019t be influenced etc\u2026with Thomas, Alito, O\u2019Connor, Kavanaugh, and all\u2026I definitely don\u2019t feel the same way.\n\nhttps://t.co/6YZYqMFvAM\u201d— Yuh-Line Niou (@Yuh-Line Niou) 1683092690
O'Connor—who is now 93 years old—would come to have regrets, which she expressed years after her 2006 retirement. In 2013, she told the Chicago Tribune editorial board that Bush v. Gore "stirred up the public" and "gave the court a less-than-perfect reputation."
"It took the case and decided it at a time when it was still a big election issue," she said. "Maybe the court should have said, 'We're not going to take it, goodbye.'"
There were other reasons why some commentators refer to the 2000 presidential election as "stolen." Chiefly, massive voter disenfranchisement resulting from racist policies of Republican Florida Gov. Jeb Bush—the GOP candidate's brother—played what one federal civil rights official called an "outcome-determinative" role in the state's, and therefore the nation's, results.
Scalia infamously dismissed his friend Bader Ginsburg's concerns over Black disenfranchisement as the "Al Sharpton Footnote," and habitually advised Americans disturbed by Bush v. Gore to "get over it."
\u201cThe article included extensive evidence that Ginsburg was right to be concerned. When Scalia died 2 years later, his obnoxious & dismissive Sharpton remark - which said a great deal about who he was - didn\u2019t make it into the many think pieces about his tenure on the Court.\u201d— Sherrilyn Ifill (@Sherrilyn Ifill) 1683083845
However, it was ultimately the Supreme Court's cessation of the unfinished Florida recounts, and Gore's subsequent meek acquiescence "for the sake of our unity as a people and the strength of our democracy," that handed victory to Bush.
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