George Will rises to the defense of the Supreme Court's disgraceful Bush v. Gore decision on the occasion of its 10th anniversary. (Apparently the Supreme Court was engaged in "judicial engagement" rather than activism.) What's most telling about Will's argument is that it makes essentially no attempt to actually defend the Court's equal-protection holding, and it also makes no defense to explain the Court shutting the recount down, although if we were to take the Court's opinion seriously, the count that gave Bush the presidency was just as constitutionally defective.
Rather, like most of the decision's defenders, Will seems to be relying on the non-legal principle of "two wrongs make a right." Will's focus primarily rests on criticism of the Florida Supreme Court, which, according to Will, was "disregarding" Florida state law, hence justifying the Supreme Court's intervention. The problem with this claim is that it's utter nonsense. The Florida law governing election contests in 2000 explicitly authorized Florida courts to "provide any relief appropriate under such circumstances." It's unclear how the Florida courts could be "disregarding" laws that gave them nearly unlimited discretion to resolve election contests.
Another problem with accusations that the Florida courts were ignoring the law in order to help a favored litigant is that the Florida Supreme Court consistently applies the same standard although it allowed Bush to prevail in three out of five cases. Will sneers that the Florida court was disregarding the rule of law by privileging the "intent of the voters" over "hyper-technical reliance upon statutory provisions." But when it came to military absentee ballots that were technically illegal because of procedural defects, it was the Bush campaign that argued that the intent of the voters, and not statutory technicalities, should prevail -- and the allegedly "political" Florida Supreme Court agreed with Bush. In other words, it was the actions of Bush and his supporters, not the Florida Supreme Court, that were cynical and unprincipled. And when it comes to "cynical and unprincipled," it's hard to top Bush v. Gore.
--Scott Lemieux
