Sunday, May 5, 2013

On Bush v. Gore, O’Connor Belatedly Regrets

      After nearly 35 years on the Supreme Court, Justice John Paul Stevens thought back to his first term to list the one vote he most wanted to have back. Stevens joined with moderates Potter Stewart and Lewis F. Powell Jr. in the pivotal opinion in Griggs v. Georgia (1976) that allowed states to resume the death penalty under procedures to narrow its use to defendants most deserving of execution.
     ”I thought at the time,” Stevens told NPR’s Nina Totenberg in September 2010, three months after his retirement, “that if the universe of defendants eligible for the death penalty is sufficiently narrow so that you can be confident that the defendant really merits that severe punishment, that the death penalty was appropriate." Over the years, however, Stevens said the court expanded the cases eligible for the death penalty, undermining his original premise. “I really think that the death penalty today is vastly different from the death penalty that we thought we were authorizing,” he said.
      Stevens is not the only justice to have a change of mind after leaving the bench. Powell famously expressed regrets about his decisive vote in Bowers v. Hardwick, the 1986 case that upheld state anti-sodomy laws. ”I think I probably made a mistake in that one,” he told a group of New York University law students in October 1990, three years after retiring. A full generation of gay men paid the price for Powell’s mistake by living under a legal cloud until the court reversed the decision 17 years later in Lawrence v. Texas (2003).
      Now comes retired justice Sandra Day O’Connor to express regrets about her vote in another, even higher-profile case: Bush v. Gore, the 5-4 decision in December 2000 that gave George W. Bush the presidency by blocking a popular vote recount in the election-deciding state of Florida. The court “took the case and decided it at a time when it was still a big election issue,” O’Connor told the Chicago Tribune editorial board on April 26. “Maybe the court should have said, ‘We’re not going to take it, goodbye.’”
      “It turned out that the election authorities in Florida hadn’t done a real good job there and kind of messed up,” O’Connor continued. “And probably the Supreme Court added to the problems at the end of the day.”
      Like Powell, and unlike Stevens, O’Connor cannot rationalize her vote after the fact on the basis of unforeseeable developments. The stakes in Bush v. Gore could not have been clearer: not only the White House but also public confidence in the court itself. And the path to a decision that could have safeguarded public confidence in the court was available: the proposal by Justices David H. Souter and Stephen G. Breyer to send the case back to Florida with instructions to adopt uniform criteria for the further recount.
      O’Connor chose instead to join with Justice Anthony M. Kennedy in the pivotal opinion that stopped the election recount on the basis of a previously undiscovered federal constitutional right to uniformity in state election tabulations. O’Connor’s cryptic comments more than a decade later shed no light on why she did not join Souter and Breyer in letting the recount proceed. As one other alternative, O’Connor could have taken the route she now says might have been best: she could have voted to dismiss the case without a ruling — in effect, saying “Goodbye.” That would have provided a decisive fifth vote for letting the recount go on.
      The two senior veterans of the Supreme Court press corps are taking opposite views of O’Connor’s after-the-fact regrets. In a column on the New York Times blog Opinionator, the newspaper’s now semiretired Linda Greenhouse is lightly scornful of O’Connor’s comments, noting that her change of heart comes too late to make a difference. Shortly after the original decision, Greenhouse wrote in the Times’ house organ, Times Talk, that Bush v. Gore marked the first time in three decades of covering the court that she viewed it as having issued a truly partisan decision.
      From the opposite perspective, Lyle Denniston, now with SCOTUSblog after more than 50 years of covering the court, stoutly defends the court’s decision. In his view, the court had no alternative but to hear Bush’s appeal of the Florida Supreme Court’s decision. The public would not have been content to let lower courts decide what had evolved into a constitutional crisis, Denniston argues in a posting on Constitution Check, the blog of the National Constitution Center. And he has contended in other settings that the court’s decision was right on the merits and that Bush’s narrow victory in Florida has been confirmed by subsequent journalistic efforts at a complete recount.
      On the court’s decision to take the case, O’Connor’s regrets are beside the point. With only four votes needed to grant certiorari, O’Connor’s vote was surely unnecessary. But those, like Denniston, who argue that a complete recount would not have mattered overlook the effect on the court itself, as Stevens explained in his dissenting opinion. “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election,” Stevens wrote, “the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”


  1. I had not seen Mr. Denniston's comments on the Bush v. Gore case before, and I have to say that I am surprised. I have contemporary 2001 news articles that show that the journalistic recount was not so clear. Besides, even if the actual vote had supported the ruling of Bush v. Gore, that would have only made it a good guess. As it is, the decision was a plurality of opinions, with a majority simply declaring that President Bush had won the election. From a legal theory standpoint, the theory with the largest number of votes was the dissent with 4 votes, and with the majority strongly disagreeing with each other as to the legal theory that gave President Bush the election.