Justice Sandra Day O’Connor just died. It seems poor form to criticize the departed. But she might as well have participated in Dred Scott v. Sanford, the worst decision the Supreme Court ever handed down and one of the triggers for the Civil War, because her vote was crucial to another decision just as bad. O’Connor, Rehnquist, Thomas, Scalia, and Kennedy all voted to substitute their presidential preferences for the election results in 2000. It has been standard and proper for courts to conduct recounts when elections are challenged and enough votes are at issue to change the result. The Florida Court was doing that. And they were doing it the right way – recounting the whole Florida vote by a single set of rules. But this group of so-called justices decided it was OK to take the election into their own hands lest Mr. Bush be embarrassed by the results – Scalia was quite explicit about it but there was no other real explanation.
Having taken control over a presidential election, it seemed anything was possible. And it was. The decision changed who could be nominated to the Supreme Court. We’ve been trying to have a code of Supreme Court judicial conduct but that decision was self-dealing – deciding who would be on the Court with them. In the short run it was Roberts and Alito. With Thomas and the Trump trio – Gorsuch, Kavanaugh and Barrett – this is the crew that struck down Roe v. Wade after telling Congress it was a super precedent. And it’s the crew that has been deciding, with great consistency, that there is nothing to be done about the election chicanery that allows a Republican voting minority to dominate the Democratic voting majority and turn over control of the House to a small minority even of the Republic Party and constantly threaten to close down government so that their small legislative majority could dominate despite the Democrats significant national support. That’s part of what Bush v. Gore got us. And they also made it much more difficult to prove or get relief for discrimination. If you aren’t allowed to prove discrimination, how are you going to get equality?
By installing Bush, Bush v. Gore also got us the Iraq and Afghanistan wars, ill-conceived wars based on fooling the American people about the logic. Thank you Bush v. Gore for installing a president who would start major wars that achieved nothing and installed new members of the Court who would do what Republicans could not do at the ballot box. That is the result of one crucial decision that fails to respect the political process.
This is not a court we can live with – it will instead destroy us all. That’s why I’ve been calling for tearing down everything we can about the Court – it’s budget, building, staff and the statute that let’s them control their own docket.
I have met the late Justice O’Connor. She was here for a conference I ran in 1991 and gave the keynote address. She had written a fair amount about the subject of that meeting. To some extent, she changed what she wrote about it afterwards. But her vote in Bush v. Gore has done incredible damage. She might as well have been Chief Justice Taney in Dred Scott.
— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on December 5, 2023.
Constitutionalism and Democracy 
Your late colleague, Prof. Peter Preiser, always pointed out that Justice O’Connor wrote with notable clarity.
Justice O’Connor’s clarity might be a function of an early career spent almost as much in elective office as on the bench and at bar.
Possibly, her vote in the case you dscuss came from the same source.
Some people point out that you probably would not have gotten the Brown decision without Chief Justice (and former CA Governor) Warren’s political skills.
Nothing is without its trade-offs.