The 2000 Supreme Court ruling that effectively decided the presidency for George W. Bush relied on faulty legal reasoning, Justice Antonin Scalia profanely said privately at the time, though he joined the majority backing the 5-4 decision anyway.
That’s according to a new biography by Evan Thomas of one of Scalia’s longtime high court colleagues, “First: Sandra Day O’Connor – An Intimate Portrait of the First Woman Supreme Court Justice,” set for publication March 19.
Thomas recounts the politically fraught days after the November 2000 contest between Texas governor Bush, the Republican nominee, and his Democratic rival, Vice President Al Gore, when a hairline margin in Bush’s favor led to political chaos. Demonstrations around the Sunshine State and the Republican-led “Brooks Brothers riot” in South Florida lent the jump ball presidential race an aura of political protest and constitutional crisis.
“Republicans wanted to freeze the process to preserve Bush’s razor-thin margin; Democrats wanted to keep the recount going, believing Gore would win,” Thomas writes. “Florida’s Republican secretary of state, Katherine Harris, was ready to certify Bush’s victory; a Democratic-controlled state supreme court was poised to overrule her. In retrospect, it was inevitable that the justices of the U.S. Supreme Court would be called in to break the logjam.”
After weeks of legal wrangling, the Supreme Court decided 5-4 — along strict party lines — to stop the state recount the Gore legal team sought. The court majority intervened in Bush v. Gore because it perceived a violation of the Fourteenth Amendment’s equal protection clause in the manual recounts that had been ordered in Florida.
Critics accused the conservative bloc of justices of finding a legal rationale for a partisan ruling, which effectively put the Republican presidential nominee in the White House.
Even Scalia, arguably the most conservative justice of recent decades, wasn’t particularly convinced of the legal rationale but went along with it anyway, Thomas writes.
“Somewhat amazingly, O’Connor persuaded the three conservatives — Scalia, [Chief Justice William] Rehnquist, and [Justice Clarence] Thomas — to sign on to the equal protection rationale (even though Scalia privately scoffed that it was, ‘as we say in Brooklyn, a piece of shit’).”
Thomas notes that O’Connor wasn’t crazy about the argument either, but it was good enough under the circumstances.
“O’Connor inserted the most banal — and telling — phrase: The holding of the Court’s opinion was ‘limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.’ In other words the Court’s opinion was extremely narrow — a one-time ticket to get out of a jam.”
Scalia, who died in 2016 at 79, for the rest of his life dismissed claims that partisan motivations were behind the Bush v. Gore ruling. The outgoing vice president never should have brought the dispute into the courts, Scalia told the Telegraph in a 2008 interview.
“Richard Nixon, when he lost to [John F.] Kennedy thought that the election had been stolen in Chicago, which was very likely true with the system at the time,” he said, nearly eight years after Bush v. Gore. “But he did not even think about bringing a court challenge. That was his prerogative. So you know if you don’t like it, don’t blame it on me.”
Scalia added, “I didn’t bring it into the courts. Mr. Gore brought it into the courts. So if you don’t like the courts getting involved talk to Mr. Gore.”
