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Since 2008 – Progress Through Politics

O’Connor Confesses That Maybe SCOTUS Shouldn’t Have Taken Bush v. Gore

 photo SandaDayOConnor_zpsaffdcad7.jpg

In an interview with the Chicago Tribune, retired Supreme Court Justice Sandra Day O’Connor admitted that the Court possibly erred when it decided to take Bush v. Gore:

Maybe the court should have said, ‘We’re not going to take it, goodbye.

That, however, wasn’t even the kicker.  This was:

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. (emphasis my own)

Think about that for a second.  She pretty much admits that the biggest decision rendered while she sat on the Supreme Court she provided the necessary vote to get it wrong and swing a presidential election.  Perhaps this could have been somewhat understandable if George W. Bush had won the popular vote and there was a sense in the nation that the courts should step in to make sure the popular vote winner took office.  That, however, was not the case.  Bush lost the popular vote and her vote helped pave the way for the loser to take office.

Now, let’s take it a step further.  The decision in Bush v. Gore was issued per curiam, literally meaning ‘by the court’.  In such decision authorship is attributed to no specific justice and such decisions are usually restricted to cases that are either unanimous cases and uncontroversial cases.  They usually do not occur in 5-4 cases, and certainly not in ones as controversial as Bush v. Gore.  Yet, despite this, O’Connor helped make a 5-4 majority.

Then there’s this language in the Court’s opinion, language which has disturbed many since it first appeared:

Our consideration is limited to the present circumstances (emphasis my own), for the problem of equal protection in election processes generally presents many complexities.

Our system of common law jurisprudence is based upon the notion that prior cases provide precedent for future cases.  Past decisions can, of course, be limited or overturned by courts of equal standing to the one that made the decision initially.   Here, however, the Court largely confessed that its decision was not to be taken as precedent.  That any common law court admits, in the decision itself, that the decision is not to be taken as precedent for any future cases is tantamount to an admission that the decision is not based upon the law, but, rather, based solely upon the will and preferences of the majority.  That is what Sandra Day O’Connor signed her name to in the court’s per curiam opinion.

In closing, I suggest reading (or re-reading) this article written by Vincent Bugliosi at the outset of the Bush Administration back in 2001.


  1. Mets102

    It would still be Judge John Roberts of the DC Circuit and Judge Samuel Alito of the Third Circuit, rather than Chief Justice Roberts and Justice Alito, had O’Connor not assisted in the ‘mistake.’

  2. princesspat

    …was there any other legal recourse that could have been realistically pursued? As I recall Gore was praised for accepting the decision and not putting the electoral process under further stress…..but what a price we have all payed for that election. Respect and deference were given to those who had not earned it, did not deserve it, and squandered the opportunity to govern.

    Thanks for writing today.

  3. Portlaw

    was treason. I remember Souter’s face after the decision. He looked stricken as well he should.  

  4. decision and the decision to attack Iraq. The presidential election went to Bush after the Court said there wasn’t enough time to find out the truth. Prior to attacking Iraq, though the weapons inspectors found no evidence of WMD, though we’d had a no-fly zone and aerial surveillance in place for more than a decade, we supposedly didn’t have enough time to find out the truth.

    Of course, one disaster in intelligence led to another.  

  5. Mnemosyne

    for Bush, it’s entirely possible that Citizens United would never have been a Supreme Court case, with all its subsequent fallout on the electoral landscape.

    Reading this makes me angry all over again, to the point that I really wish there were some way to exact retribution against her and the others who voted to throw out the election results.

    They are evil, evil people.

  6. Ronk

    Bush lost the popular vote and her vote helped pave the way for the loser to take office.

    I wonder if she feels any responsibility for the two wars and thousands of lives lost due to her decision.  

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