Ten years after the Supreme Court decided the presidential election, ampoule Jeffrey Toobin explores the decisions legal impact, or lack thereof, on future case law. And the transformation of the Court that the Bush v. Gore decisions signaled.
Momentous Supreme Court cases tend to move quickly into the slipstream of the Courtâ€™s history. In the first ten years after Brown v. Board of Education, the 1954 decision that ended the doctrine of separate but equal in public education, the Justices cited the case more than twenty-five times. In the ten years after Roe v. Wade, the abortion-rights decision of 1973, there were more than sixty-five references to that landmark. This month marks ten years since the Court, by a vote of five-to-four, terminated the election of 2000 and delivered the Presidency to George W. Bush. Over that decade, the Justices have provided a verdict of sorts on Bush v. Gore by the number of times they have cited it: zero.
Bush v. Gore would resonate, in any case, because the Court prevented Florida from determining, as best it could, whether Gore or Bush really won. But the case also represents a revealing prologue to what the Supreme Court has since become. As in Bush v. Gore, nominally conservative Justices no longer operate by the rules of traditional judicial conservatism.