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Justice Stevens: Bush v. Gore Decision Violated Constitution

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    NEWSLETTERS

    John Paul Stevens, the Chicago lawyer who served on the U.S. Supreme Court from 1975 to 2010, has become the second ex-justice to question the Bush v. Gore decision, which ended the recount of votes in Florida, ensuring George W. Bush’s victory in the 2000 presidential election.

    At a Washington, D.C., gala for the consumer advocacy group Public Citizen, Stevens called the decision “really quite unacceptable” because it differentiated between hanging chads and dimpled chads. That “violated the Equal Protection Clause of the Constitution” by differentiating between votes. (Public Citizen, ironically, was founded by Ralph Nader, whose presidential candidacy helped make the race close to begin with, by drawing liberal votes away from Gore.)
    Stevens, whose family built the Stevens Hotel, attended the University of Chicago Lab School, the University of Chicago, and Northwestern University Law School. He was appointed to the court by President Ford, but by 2000 had become a member of its liberal wing. In the 5-4 decision to shut down the recount, Stevens voted to keep counting.
    Justice Sandra Day O’Connor, a Reagan appointee who voted to stop the recount, told the Chicago Tribune editorial board last month that the court may have erred by taking the case.
    "It took the case and decided it at a time when it was still a big election issue," O'Connor said. "Maybe the court should have said, 'We're not going to take it, goodbye.'"
    The case, she said, "stirred up the public" and "gave the court a less-than-perfect reputation."
    "Obviously the court did reach a decision and thought it had to reach a decision," she said. "It turned out the election authorities in Florida hadn't 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."
    David Souter, the other living ex-justice, has not spoken publicly about Bush v. Gore, but at the time, he was said to have been so distressed by the result that he considered resigning from the court.
    How would history have been differed if the court had not stepped in, and Gore had won the recount? The Iraq War would never have happened, obviously. Gore would probably have been a one-term president, defeated in 2004 by John McCain. That was the fate of Martin Van Buren and George Bush, the only sitting vice presidents elected president. 
    It’s also interesting to speculate on how Barack Obama’s career would have been different. Obama made a name for himself among liberal activists by speaking out against the pending invasion of Iraq in 2002. Those activists helped him win election to the Senate two years later. He was elected president in 2008 by running against the ruins of the Bush presidency. If Bush had never been president, Obama’s rise would at least have been delayed. Instead of challenging an incumbent Republican in 2008, he might have waited until 2012. Or he might never have run for president at all -- another example of how Bush v. Gore was one of the Supreme Court’s most momentous decisions.