Bush v. Gore: Still a Trip

When I drive directly from my northwest Washington, D.C., home to the Supreme Court, without stopping at the office, I take North Capitol Street south toward the Hill. And when I’m just about a half mile from my turn off of North Capitol, I hit the spot where I first heard on the radio that fateful Saturday, December 9, that the Court had halted the Florida recounts in the presidential election of 2000.

After ten years, I still cannot pass that spot without recalling the shock of the Court’s order. I had been driving in to get the latest filings and never suspected intervention was imminent. The Court’s conservative-controlled 5-4 order stopped Florida ballot recounts – a day after the Florida supreme court had ordered the counting resumed — and set oral arguments in George W. Bush’s appeal. The Court’s order also set the stage for what happened three days later: a 5-4 ruling that fully ended the litigation over the state’s decisive presidential electoral votes and let Bush take the White House over Al Gore. 

Irrespective of the legal merits (and I lay them out in chapters of both biographies), I don’t think I’ll ever – as Justice Antonin Scalia regularly admonishes – “get over it.”

In recent days, I have been even more aware of how much the case remains with us. Justice Stephen Breyer told me Tuesday that in his travels audiences regularly ask him about the ruling, and half the people still think it was wrong. Breyer, who dissented, uses Bush v. Gore in his latest book, Making Our Democracy Work, however, as a positive example of how  people rightly follow Court rulings even then they don’t like them.

I am asked about the case all the time. At a Smithsonian panel on Court trends in November, one of the first audience questions was from a man still angry about it. Also on the panel were acting U.S. solicitor general Neal Katyal, who had worked for Gore, and former U.S. solicitor general Paul Clement, who had worked for Bush, and they jumped in to air the two sides.

There’s something about Bush v. Gore that’s not going away. At least for those of us connected to the Court. New Yorker writer Jeffrey Toobin does observe in an essay this week about the anniversary of the case that former President Bush in his memoir, Decision Points, devotes less than a page to it.