Sorry, Still Not Over Bush v. Gore

Antonin Scalia was a guest on Piers Morgan's show last night, and he was relatively entertaining and at times even said things I agree with. For example, even in the wake of the Republican bait-and-switch on the DISCLOSE Act, Scalia held firm to his previously expressed view that it's permissible and desirable for people making large political donations to have these donations disclosed. This is a welcome contrast to the Sarah Palin/Mitch McConnell theory of the First Amendment, under which powerful actors trying to influence the political process have the right to be shielded from criticism or any other consequences.

On the other hand, there is a self-congratulatory aspect to Scalia's pronouncements about jurisprudential theory that remain grating in light of his actual work on the Court. As always, he presents himself as "The Last Truly Principled Judge in America," adhering to the fundamental principles of the text of the Constitution while other judges preempt democracy by illegitimately injecting their own views into the Constitution. It's hard for me to sit still for this in light of Scalia's heavy involvement in Bush v. Gore, the most obvious example of low politics affecting the Court. Scalia's attempts to justify the indefensible have not improved:

SCALIA: Contentious? Well, I guess the one that, you know, created most—most waves of disagreement was Bush v. Gore, OK? That comes up all the time. And my usual response is get over it. MORGAN: Get over the possible corrupting of the American presidential system? MORGAN: Justice Scalia? SCALIA: Look it, I—my court didn't—didn't bring the case into the court. It was brought into the courts by Al Gore. He is the one who wanted courts to decide the question which—when Richard Nixon thought that he had lost the election because of chicanery in Chicago, he chose not to bring it into the courts. But Al Gore wanted the courts to decide it. So the only question in Bush v. Gore was whether the presidency would be decided by the Florida Supreme Court or by the United States Supreme Court. That was the only question, and that's not a hard one. MORGAN: No regrets? SCALIA: Oh, no regrets at all, especially since it's clear that the thing would have ended up the same way anyway. The press did extensive research into what would have happened if what Al Gore wanted done had been done county by county, and he would have lost anyway.

Scalia is inadvertently right about one thing: It's not a "hard question" whether this case should have been resolved by the Florida Supreme Court or by the United States Supreme Court. Since the case was an issue of state law that did not present anything remotely resembling a substantial federal constitutional question, it should have been decided by the former. Despite all of his previous discussion of "textualism" and "originalism," Scalia makes no attempt to defend the holding that using different vote-counting methods in different counties is unconstitutional in this case—but not in any other case (including the count that gave Florida's electoral votes to Bush, which also didn't use a uniform standard)—using his stated judicial principles, for the obvious reason that this is impossible. So, instead, he rests on an argument that's pure politics. Worse, it even fails on its own pragmatic terms on multiple levels.

First of all, it's not true that Bush would clearly have won a recount. In fact, he probably would have lost. This aside, if Bush would have won anyway, it's not clear why the Supreme Court had to intervene in the first place—if the result would have stayed the same, why the necessity to get involved at all?

Of course, it's surprising that Scalia wants to tell himself that Bush v. Gore didn't ultimately matter. But he's wrong about the consequences, and even if he were right it doesn't make Bush v. Gore any more defensible.

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