On Bush v. Gore and “Bad Hair Days” at the Court

November 17, 2014
posted by Bob Bauer

To Linda Greenhouse, the Court’s decision to take up a new challenge to the Affordable Care Act is political—not Bush v. Gore all over again, but worse. While disagreeing with Bush v. Gore, she was prepared to make allowances for it: there was, she writes, at least a “plausible argument” for that case.

This is not the first time that Greenhouse has minimized the significance of Bush v. Gore. On the tenth anniversary of the decision, she referred to it “not as a travesty or tragedy, but as a bad hair day.” While taking issue with the decision, which she terms “ludicrous,” she sees it as a mishap, a bad result into which the Court simply blundered. Or just happenstance: a “bad hair day” at the Court.

And there is more to Greenhouse’s understanding of Bush v. Gore. She suggests that that the circumstances were sufficiently extraordinary that, in one plausible view, the Court might be spared condemnation for acting politically. “In the inconclusive aftermath of the 2000 election,” the country was experiencing a “growing sense of urgency,” requiring “someone [to] do something soon to find out who would be the next President.” The job could have fallen to Congress, but the Court had jurisdiction, and so it did what it thought had to be done, what “someone” had to do.

Any concern with the Court acting “politically” would have to begin with a decision to take on the duty of settling the outcome of a Presidential election. It is not just, as Greenhouse states, that “the 5-4 decision to stop the Florida recount had the effect of calling the election for the governor of Texas.” It has the necessary effect of deciding the election: the Court did not issue its mandate with any question in its collective mind that it was resolving the contest and ushering one of the competing candidates to the White House. If there is a political choice the Court might make, it would seem to have made it in 2000. A majority of the Justices concluded that it fell to the Court, and neither to the Florida electoral process nor to Congress, to resolve a political controversy—to decide a Presidential election. The politics here plays out on two levels, in both the conception of the Court’s role and in the specific act of stopping a vote count in favor of one candidate.

Of course, the Court has been criticized for other adventures in politics. Its decisions in Citizens United and other campaign finance cases have involved the Justices in questionable judgments about the operation of the electoral politics. This has led Jeffrey Rosen and other observers to worry that the Court could benefit from members with experience in politics—a Warren or a Black.

But if the objection to the Court overstepping its limits and engaging in politics is to have any meaning, Bush v. Gore would appear to stand out. There are plentiful grounds for worry about the Court’s response to the latest attack on the ACA. None require the conclusion that by comparison, Bush v. Gore was just a bad hair day.

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