Looking back, O’Connor said, she isn’t sure the high court should have taken [Bush v. Gore].
“It took the case and decided it at a time when it was still a big election issue,” O’Connor said during a talk Friday with the Tribune editorial board. “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.“
If nothing else, Bush v. Gore demonstrates how justices who are determined to reach a certain result are capable of bending both the law and their own prior jurisprudence in order to achieve it. In Bush, the five conservative justices held, in the words of Harvard’s Larry Tribe, that “equal protection of the laws required giving no protection of the laws to the thousands of still uncounted ballots.”
The Court’s decision to hand the presidency to Bush stunned many legal observers, some of whom were O’Connor’s fellow justices. Retired Justice John Paul Stevens once recounted a story where he ran into fellow Justice Stephen Breyer at a party while a relatively early phase of the case was pending before the Court. According to Stevens, “[w]e agreed that the application was frivolous.”
Indeed, Bush’s own lawyers were skeptical of the legal theory that ultimately made up the basis of the Court’s decision in Bush. As Ben Ginsberg, a top lawyer on Bush’s presidential campaign, explained in 2006, “just like really with the Voting Rights Act, Republicans have some fundamental philosophical difficulties with the whole notion of Equal Protection.”
And, yet, O’Connor and four of her fellow Republicans joined together to embrace a particularly aggressive reading of Equal Protection — at least so long as it could put George W. Bush in the White House.