The Bush v. Gore (2000) decision has been scrutinized as the most partisan decision by the Supreme Court, arguably in history, but certainly for the last several decades. Justice John Paul Stevens in his dissent states “the identity of the loser [of the 2000 election] is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law“. In the United States, the Supreme Court has had a long history of maintaining the highest public confidence of the three branches; with upwards of 50% confidence among adults throughout the 80s and 90s, but data shows that this confidence is eroding with this opinion down to 32% in the years after the decision. With American confidence in democracy already at a low, it seems plausible that the Supreme Court is failing in its essential role to be nonpartisan while balancing powers of the federal government.

Ginsburg and Huq noted that the “judicial independence” of the Supreme Court “make(s) it quite vulnerable to antidemocratic action” against the United States democracy. [1]. Part of this independence comes from the ability of the court to pick and choose what cases it wants to hear and how it wants to apply precedent, constitutional interpretation, and other influences on judicial review. It is clear that “there is no structural reason why federal courts…cannot act as agents of a party seeking political hegemony rather than as a check on democratic erosion” [2]. That is, there is definitely a possibility, for the court to fail its role previously listed, but did this already happen when deciding the 2000 election?

In the final days of counting ballots for the 2000 presidential election, the United States Supreme Court reversed the decision of the Florida Supreme Court, deeming it unconstitutional to hold manual recounts under the Equal Protection Clause as it calls for “arbitrary and disparate treatment.” At face value, it surely seems possible that the court could reach this decision. When you start analyzing, however, one can find that all “conservative” members opposed the recount and all “liberal” members favored the recount [3]. This could merely be a coincidence, and it surely is not the first time the Court has voted along partisan lines, but there is further evidence supporting political ideology as the reason for certain judicial decision-making.

This concern is advanced when looking at a recent study that attempted to discern whether a computer program could forecast Supreme Court decisions more accurately than a group of legal experts. The computer program was created to forecast the decisions of the Supreme Court based on different variables including the issue area of the case and the ideological direction of the ruling. The computer program was able to correctly predict decisions 75% of the time with these simple variables, while the experts only managed 59.1%. This is a significant margin of improvement and a rather strong example of how ideology can be a heavy predictor of judicial outcomes.

There are some cases where this is not necessarily the case, but for the most part, the Court seems rather polarized, just like the rest of the nation. The Bush v. Gore example is one that exemplifies this especially well. With the highest office in the land up for grabs, the justices had a decision to grant the election win to Republican candidate Bush, or allow the recount and potential turn the victory over to Al Gore, who had the popular vote by roughly 500,000 votes.

The Supreme Court typically defers to the highest court of the State when it comes to interpreting that own State’s Law [4]. That practice was not followed in Bush v. Gore. It decided to overturn the Florida Supreme Court’s interpretation, who deemed it within constitutional limits to have a manual recount in certain districts. When it comes to political tensions, there is no time more stressful than that of an election. Tensions run high among candidates, congressional figures, and a majority of the population. If there were a time for the court to go against the grain, there is rarely going to be a decision with such a direct impact than that of potentially deciding an election.

Of course, there is no guarantee that Al Gore would have won the election if the recount went through. And there is some reason to defend the Supreme Court. It is not the first time a decision has come under controversy. The most topical decisions always face widespread criticism, from Roe v. Wade to Obergefell v. Hodges. It makes sense that if the entire country is opinionated on these topics, there would be some influence on the justices from access to a wider range of public opinions, news coverage, and opinions of colleagues. However, the question trying to be answered is not whether the court makes the right or wrong choice, it is whether the Court has become less reliant on the Constitution and judicial norms in favor of partisanship.

While the forecasting study’s program was correct 75% of the time, that still leaves 25% of cases where the outcome did not go in favor of the majority’s political preference. That is, there is still some chance the justices disagree with their own party, whether based on precedent, bargaining among the justices, or some other factor. If the court had already failed, this ratio would likely be closer to, if not at 100%. It is still worrisome to see political alignment play such a large factor, though, and even more so that justices within the court are also calling the court itself out for failure to maintain impartiality.

Bush v. Gore was a very unusual case with a major impact that the court will likely not have again, at least not for a lengthy period of time. The Supreme Court holds no power of the purse, creating legislation, or execution of these laws like Congress and the presidency. It has to assert its power in interpretation and rely on the other branches to follow through on this decision. When a chance arises for the Court to exert its influence and power, or test these limits, it makes some sense to do so. The Court is definitely treading in a dangerous area, and one of its main strengths has always been widespread public support. With this support at a low, and seemingly on the decline, the Supreme Court may have not failed yet, but it is certainly on the road there. Something has to change to restore faith, not only in the judiciary but in democracy as a whole, before the United States backslides beyond repair.

Photo: Official White House Photo by Shealah Craighead, “Swearing in judge Neil M. Gorsuch”

[1] Ginsburg, T. and Huq, A. How to Save a Constitutional Democracy (2018). Chicago: University of Chicago Press. pg. 163

[2] Ibid. pg. 146

[3] Choper, Jesse. “Why the Supreme Court Should Not Have Decided the Presidential Election of 2000”, 18 Const. Comment. 335 (2001). pg. 347

[4] Monaghan, Henry. “Supreme Court Review of State-Court Determinations of State Law in Constitutional Cases.” Columbia Law Review, vol. 103, no. 8, 2003, pp. 1924