The Real Problem with Bush vs. Gore

This is mostly a moot point now that John Roberts kinda-sorta upheld Obamacare, but there was a point lost in the scuffle between Will Wilkinson, Jonathan Chait, and others about whether or not the Supreme Court stole the election for Bush. The discussion focused mostly on the consortium of news organizations which investigated the recount and found that Bush would have won under most possible recount conditions.

[UPDATE: Talking with Josh Holland on Twitter he pointed me to this article, which gave the result of the consortium recount as: “If all the ballots had been reviewed under any of seven single standards, and combined with the results of an examination of overvotes, Mr. Gore would have won, by a very narrow margin.” Point taken.]

I suppose it’s important to know who “really” won, setting aside all the vote caging and shenanigans from Kathleen Katherine Harris et al, but the point of Bush vs. Gore is really quite simple, and can be summed up in one sentence: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

See, the justices couldn’t know in advance who would win the recount. Therefore who actually won is beside the point when talking about the legitimacy of the decision. The majority saw their favored candidate ahead, and invented a legal pretext to keep him there so flimsy that they included the previous disclaimer saying their decision couldn’t be used as precedent. That’s probably why the opinion was unsigned. If I had written that I wouldn’t want my name on it either.

That is the real problem with Bush vs. Gore, and why it remains so troubling. It was the Supreme Court installing their preferred president.

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Ryan Cooper

Ryan Cooper is a national correspondent at the Week. His work has appeared in the Washington Post, the New Republic, and the Nation. He was an editor at the Washington Monthly from 2012 to 2014.