In the dissent of Morrison V. Olson on June 29th, 1988, Justice Antonin Scalia is quoted “The Framers of the Federal Constitution… viewed the principle of the separation of powers as the absolutely central guarantee of a just government… Without a secure structure of separated powers, our Bill of Rights would be worthless” (Adler, 13). Twelve years later, in 2000, Justice Scalia along with four other United States Supreme Court judges undermined this very principle of the separation of powers. The belief that the court overstepped its constitutional boundaries in hearing Bush v. Gore (Ackerman, xi) has been the subject of much debate; yet that is a question better left to those interested in the constitution. Instead of asking whether the court should have, it is better to ask what influenced the justices in not only taking the case, but more importantly, in the decision that was made. The five justices that ruled in favor of Republican candidate George W. Bush were influenced by their political allegiances, potential personal gains, and their wishes to see the United States Supreme Court remain dominated by a conservative majority of judges in the future (Balkin, 1409).

   Election Day 2000 was November 7th, and it wasn’t until December 13th, 2000 that Democratic presidential candidate Al Gore conceded to George W. Bush (Dershowitz, 20). In the thirty-six days between these two dates, the Supreme Court made several key decisions regarding the counting of ballots in Florida; the state’s vote count was so narrow between candidates that a recount was automatically required (Dershowitz, 19). On November 24th, the Supreme Court agreed to hear the Bush petition (Dershowitz, 37) for review of the Florida Supreme Court decision to extend the deadline of vote certification (Dershowitz, 21). This case would come to be known as Bush v. Palm Beach County Canvassing Board (Balkin, 1410). However, the court was clear in that it would hear only that the Florida Supreme Court had violated the United States Constitution under Article II, by “changing the law as enacted by the Florida Legislature” (Dershowitz, 37). December 3rd’s ruling vacated Florida’s Supreme Court decision, and “remanded the case back to the Florida Supreme Court for clarification of its opinion” (Dershowitz, 39).

   The Florida Supreme Court issued a 4-3 split decision (Deshowitz, 44) on the 8th of December for a manual recount in all counties of the undervotes that had not already been recounted, as well as a recount of over 9,000 votes in Miami-Dade that had a machine had excluded (Dershowitz, 45). In turn, the United States Supreme Court ordered a stay on all counting, in a 5-4 vote, with two opinions accompanying it (Balkin, 1409), one from each side of the United States political spectrum. The final intervention of the United States Supreme Court, and what is most commonly referred to as Bush v. Gore, was issued on December 12th in a per curiam opinion after another 5-4 vote by the justices (Balkin, 1412). Most likely written by Justice Kennedy, the opinion stated that the Florida Supreme Court’s order for a statewide recount “violated the Equal Protection Clause of the Fourteenth Amendment” (Balkin, 1412) and the recounts were ordered to stop. It further went on to state that the Florida Supreme Court should dismiss the case, and the vote count as it was (Ackerman, 17). Al Gore conceded the following day, and in January 2001 George W. Bush became the 43rd President of the United States of America (Abraham, 315).

   Judges on the whole, and especially justices of the United States Supreme Court, are not supposed to allow their individual beliefs influence their decisions on the bench (Rountree, 1). Yet the five Conservative judges who voted in favor of taking the original case (Dershweitz, 41), in favor of the stay (2001), and finally in favor of the opinion that the final order to stop the recounts (Acherman, 17) were heavily partisan in their actions. There is a distinction between ‘high’ and ‘low’ political partisanship in the legal sphere (Balkin, 1408); the ‘high’ would refer to decisions made by conservative justices that follow consistent ideologies and legal reasoning over some time. The low is what occurred in Bush v. Gore- the five conservatives “adopt[ing]… whatever legal arguments that would further the election of the Republican candidate” (Balkin, 1409).

   The majority Conservative justices are all known for their right-wing ideology and their appointments being made by Republican presidents (Abraham, 387). In particular, Justices Rehnquist and Scalia adhered to a strong political ideology, Scalia being a product of the Reagan administration. Scalia’s appointment came from “embrace[ing a] strict construction of the Constitution rather than a liberal agenda” (Abraham, 265). In particular, he had a strong personal and political interest in the election of George W. Bush, as without securing the presidency for a Republican candidate he would have no chance of succeeding Chief Justice Rehnquist for the top position (Roundtree, 123). Justice Scalia’s concurrence with the granting of the original stay of recount states that failing to do so would “irrevocably harm Bush’s chance to win a legitimate election” (Banks, 38), showing that Scalia already believes that the election belongs to Bush. A comment was later made by columnist Mary McGrory that “Antonin Scalia… might as well have been wearing a Bush button on his robes” (Dershowitz, 49). Chief Justice Rehnquist was not at the visible forefront of ensuring the Supreme Court heard the case, but was just as involved in Justice Scalia. The Chief Justice’s previously expressed views on the Supreme Court involving itself in state matters on the basis of Article II were at odds with the decision in Bush v. Gore (Dershowitz, 145). Rehnquist has stated on several occasions that he believes the “federal government has limited powers in relationship to the states” (Dershowitz, 146), which makes his insisted involvement in the Florida Supreme Court’s jurisdiction questionable. Chief Justice Rehnquist had a history of “unprincipled, partisan judicial activism and [a]… freewheeling approach to the Constitution as a means of serving his political and ideological and personal agendas” (Dershowitz, 143) even before the 2000 election provided him with another opportunity to further his political allegiances.

   It is widely believed that Justice Kennedy wrote the opinion in Bush v. Gore, although it is technically unsigned (Balkin, 1412). Kennedy is quoted as once saying “The court must adhere to the text of the Constitution and the controlling statutes as they have been announced, not as the courts wish to see them applied” (Dershowitz, 138), and throughout his span as a judge and justice had complied with that line of thinking. Appointed by President Ronald Reagan (Abraham, 387), Justice Kennedy was thought to be a possible choice for dissenting from the conservative majority as he is sometimes more of a moderate conservative (Dershowitz, 137). Yet he, like Scalia, was “more ambitious for promotion than devoted to principle” (Roundtree, 123), which may lend insight into his decision. Justice O’Connor, who most likely helped write the per curiam majority opinion with Kennedy, was also politically influenced in her decision. The Republican majority leader in the state of Arizona Senate, and then appointed by Reagan (Roundtree, 284), O’Connor is a life-long Republican. Further, she was once a Republican candidate for Governor, and was twice criticized by judicial ethics experts for “using her position as a justice to support partisan Republican causes. Such criticism is rare in the Court’s history” (Roundtree, 284). While mostly political partisanship, Justice O’Connor also had personal reasons for wanting a Republican installed into the presidency. Thinking about retirement in the near future, O’Connor was “reluctant to leave if a Democrat won the presidency and got to select her successor” (Roundtree, 123).

   In 1999, Justice Thomas spoke before the Federalist Society National Convention and said “In my view, [if judges] are not impartial, they are no longer judges” (Dashwitz, 146). Justice Thomas’ agreement also went against previous rulings where he wrote that the power to elect federal officials should lie with the states, and the people, with no federal government interference (Dershowitz, 150). In other previous cases, Thomas has argued that the courts shouldn’t interject their personal and/or political preferences in favor of actual legal fact (Dashwitz, 148). Yet Time magazine brought to light a conflict of interest involving Thomas’ wife, and her work for where she was “vetting resumes for positions in the Bush Administration” (Roundtree, 123). If Gore were to be elected president, Thomas’ wife would no longer be needed on the Bush transition team (Balkin, 1439). Thomas’s Republican ties extended further back, however, as he served as the assistant secretary for civil rights in the Department of Education under the Reagan administration, and through work with the EEOC solidified his conservative base (Abraham, 297). Justice Thomas’ political and personal ties heavily influenced his decision in Bush v. Gore.

   In Justice Souter’s decision to dissent from the Republican majority on the bench, his “embrace of precedent and his abiding to resolve to decide cases in line with common law principles rather than Scalia-like originalist rules” (Abraham, 294) is seen. In his opinion, there was little precedent or legal rational behind the majority justices decision (Abraham, 294). Similarly, Justice Stevens promised as his confirmation hearing to “adhere to a policy of ‘judicial restraint’ and ‘decide cases on the narrowest grounds possible’” (Abraham, 259), and so when faced with Bush v. Gore, Justice Stevens exercised judicial restraint and weighed the case not on political principles, but on the principles of law. Although both judges were appointed by Republican presidents (Abraham, 387), their legal decisions were not based upon political partisanship and possible personal gains from another Republican presidency.

   Aside from the obvious implications of Bush v. Gore on the United States government, the five conservative justices were keenly aware of the effect their decision would have on the future of the Supreme Court. As mentioned, Justice O’Connor was considering retirement, but didn’t want to relinquish her position if a Democrat would be appointing her replacement (Roundtree, 123). It is the job of the president to fill any vacancies in the United States Supreme Court, and appointments often follow political ties (Abraham, 387). F.D. Roosevelt appointed a total of nine justices over the course of his presidency, with only one being a registered Republican (Abraham, 386), whereas President Carter appointed no one during his time in the White House (Abraham, 387). These five justices would have wanted to see a Republican in the White House once more to continue to fill vacant seats with both socially and politically conservative judges.

   With a Republican president in place, Justice O’Connor made good on her intent to retire in 2005 , and President Bush replaced her with Samuel Alito, Jr. in 2006 (Abraham, 273). Alito was a New Jersey Republican with a record of conservative voting in abortion issues, affirmative action cases, and civil rights and liberties cases (Abraham, 321). Earlier in 2005 President Bush had also appointed John Roberts (Abraham, 387) to the Supreme Court after former justice Rehnquist lost his battle with cancer (Abraham, 314). Justice Roberts had firmly conservative views on abortion, capital punishment and federalism (Abraham, 318), which made him a perfect choice for the type of bench President Bush was trying to instill in the Supreme Court. The appointment of these judges to the Supreme Court would most likely not have happened if the result of Bush v. Gore, and the 2000 election had been different; Justice O’Connor would most likely have put off retirement further, and right-wing judges such as Roberts and Alito would have been doubtful on a list of possible Gore candidates. The decision in Bush v. Gore ensured that the Supreme Court would remain, and possible increase, in conservative ideals and partisanship.

   When the Florida Supreme Court made their decision on November 21st, 2000 for manual recounts to continue (Dershowitz, 39), they were doing “exactly what courts- state courts, federal courts, and the Supreme Court- h[ad] done for centuries” (Dershowitz, 41). Yet five justices sitting on the United States Supreme Court decided that their political partisanship and potential personal gains had a place in deciding the next president of the United States. On a case that was attention of all inside and outside of the United States, the justices actions “suggested that their partisanship was so thorough and pervasive that it blinded them to their own biases” (Balkin, 1408). Chief Justice Rehnquist, as well as Justices Scalia, Kennedy, O’Connor, and Thomas allowed their Republican political backgrounds, and personal lives to overstep the boundaries of law, and so decided to stop the recounts in Florida (Ackerman, 17), thus ensuring the election would go in favor of Republican George W. Bush. Each of them had their own individual biases, but each also were aware that the next president would hold the opportunity to appoint justices to the Supreme Court upon their retirement (Abraham, 387), and thus shift the balance of ideology on the bench. Whether the United States Supreme Court should have heard Bush v. Gore at all is a very separate discussion entrenched in constitutional law. However, it is clear that the five conservative justices had overtly political and personal motives behind their determination to render a verdict on Bush v. Gore; it is a verdict that not only has altered the course of American politics, but has undermined the legitimacy of the American judicial branch which as former Justice O’Connor stated- “may be restored, but only slowly” (Dershowitz, 136).


Works Cited

Abraham, H.J. (2008). Justices, Presidents, and Senators. USA: Rowman & Littlefield Publishers, Inc.

Ackerman, B. (2002). Bush v. Gore: The Question of Legitimacy. USA: Yale University Press.

Adler, R. (2004). Irreparable Harm. USA: Melville House Publishing.

Balkin, J. M. (2001). Bush v. Gore and the Boundary Between Law and Politics. The Yale Law Journal, 110, 1407-1458.

Banks, C.P. (2005). The Final Arbiter: The Consequences of Bush v. Gore for Law and Politics. USA: State University of New York Press.

Dershowitz, A. M. (2001). Supreme Injustice: How the High Court Hijacked Election 2000. USA: Oxford University Press, Inc.

Roundtree, C. (2007). Judging the Supreme Court. USA: Michigan State University Press.