Constitution Check: Was the court wrong

May 06 [Mon], 2013, 6:01
Lyle Denniston examines the latest remarks by retired Justice Sandra Day OConnor about how the Supreme Court acted in the controversial Bush v. Gore decision.

The statements at issue:

[The court] took the case and decided it at a time when it was still a big election issue. Maybe the court should have said, Were not going to take it, goodbye. Obviously the court did reach a decision and thought it had to reach a decision. It turned out that the election authorities in Florida hadnt done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.

Retired Justice Sandra Day OConnor, in remarks April 26 to the editorial board of the The Chicago Tribune, as reported in an article that day by Tribune writer Dahleen Glanton.

We do know that she sided with the majority in the actual decision, which stopped the recounting in Florida and gave a one-vote majority in the Electoral College to the man who lost the national popular vote. The ruling was a huge stain on the courts reputation because it appeared to bemay well have beenblatantly partisan.

Andrew Rosenthal, editorial page editor of The New York Times, commenting on Justice OConnors statement, in an online column, Taking Note, on April 29.

We checked the Constitution, and

checkBecause the First Amendment provides a wide berth for free speech, especially about the way the government works, punditsand even former judgesare entitled to rewrite history if they have a mind to do that. Both Justice OConnor and the Times Andrew Rosenthal have done some of that in their comments about the Supreme Courts decision in 2000 in Bush v. Gore, putting a constitutional end to that years presidential election.

Recall the factual situation on the morning after the November election: Democrat Al Gore stood to receive 267 electoral votes and George W. Bush, 246, with the 25 electoral votes in Florida undecided. To win, one candidate had to get at least 270 electoral votes. If Gore won Florida, he would have 292; if Bush won that state, he would have 271one more than enough.

Gore had 48.4 percent of the popular vote nationwide, and Bush 47.9 percent (that total doesnt add to 100 percent because there were four minor candidates). The uncertainty over who had won Floridas popular vote (and thus all 25 of its electoral votes, under the winner-take-all formula) lingered for 36 days, until the Supreme Court issued its decision on the night of December 12, 2000.

When the Supreme Court ruled that further recounts of the vote could not proceed, Bush was ahead in the Florida popular vote, and when the official canvass was completed, Bush had 537 more votes than Goreout of nearly 6 million total Florida votes between them.

Although Bush v. Gore will be debated for a long time to come, the reality is that election outcomes are decided under rules of law that govern vote-counting, and those rules routinely come into play when election-night counts turn out to be very close. No one can argue persuasively that the 2000 election was going to be settled by anything other than a legal decision. If it wasnt to be made by the Supreme Court, it would be made by lower courts. (The only chance for a political, not a legal decision, would have been if the electoral vote count had ended in a tie and the House of Representatives would settle it; given the numbers with Floridas 25 in play, there was no chance of a tie.)

If, as Justice OConnor has suggested, the Supreme Court had said that it was not going to take the case, at that point rulings by the Florida Supreme Court or by a federal appeals court would have settled it, probably by allowing further recounting in Florida. It is impossible to imagine that America would have been content to let a lower court resolve what had become, for all intents and purposes, a constitutional crisis with time running out. In that circumstance, that is why there is a Supreme Court to settle constitutional meaning.

It is not clear what Justice OConnor meant by saying that the court may have added to the problem, but that is a political assessment, not a judicial one. The court does get into political trouble when it makes controversial decisions, particularly on an issue as momentous as how to decide the legalities of a presidential election contest. The courts decision did bring an end to the crisis, and however controversial that was then or may be in retrospect, Americans quickly learned to live with it.

About Constitution CheckIn a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

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