Courting Disaster : How the Supreme Court lost its way

From Bush v. Gore to Roe v. Wade… In the midst of legal battles over a different presidential election — and originally written for UPI in November, 2004 — this commentary looks at how interference by the United States Supreme Court squandered public trust.

By Greg Guma

In 2000, five justices of the United States Supreme Court stopped the recount in Florida after a mere 36 days and made George W. Bush president. Next time, it won't be so quick, easy or peaceful, and the Court won’t be trusted enough to help.

The national divide is much deeper now and the lawsuits will start before a single vote is cast. Take Florida, for instance. And I’m not talking about 2000. Things were just as bad four years later…

When Florida Secretary of State Glenda Hood told elections supervisors on Oct. 7, 2004 that they should reject incomplete voter registration forms, Democrats went to court. Hood's office had to fend off more than a half-dozen legal challenges, before and after the vote. The issues ranged from ballot initiatives and how to handle recounts on electronic machines to the counting of provisional ballots. Legal fights also loomed over early-voting sites and voter registration rules.

When Hood's office tried to exempt electronic machines from manual recount rules, a judge overruled her. The NAACP sued Florida's Volusia County elections supervisor, arguing that having only one early voting site in an area where minorities live disenfranchises blacks.

Meanwhile in Oregon, a criminal investigation looked into charges that voter registration forms were destroyed or discarded by a political consulting firm working for the Republican National Committee. The allegations involved a voter registration drive conducted by Sproul & Associates, a Phoenix-based consulting group hired by the Republican Party and headed by Nathan Sproul, former executive director of the Arizona Republican Committee.

Allegations that a Sproul associate destroyed or dumped Democratic registration forms were surfacing in several states.

Eric Russell, one of some 300 part-time Sproul group employees in Nevada, said he saw Democratic Party registrations destroyed. Retrieving shredded paperwork that included voter registration forms signed by Democrats, he took them to local election officials and confirmed that they had not been filed with the county, as required by law. In August, 2004 a Sproul employee in Charleston, W.Va., said she quit her job after being told to register only people who confirmed that they were supporting President Bush. 

Fortunately, you might say, Kerry conceded — instead of letting the legal challenges and growing public discontent devolve into a full-blown constitutional crisis.

Cut to 2008 and 2012: Those races weren’t close enough to credibly contest, or we certainly would have heard something by now. But most people agree that 2016 and 2020 were both tainted by some kind of interference, real and/or imagined. Culprits vary, of course, depending on your politics.

Next time, some voters who think they are safely registered could be in for a surprise on Election Day. The future culprits could be Russian and Iranian hackers, or a guy sitting on a lounge at a private club in Florida who weighs close to 300 pounds. “People are saying…”

One thing is sure: courts will take center stage again, leading to endless arguments about "activist judges," "equal protection," following "precedents," forensic audits, and "judicial restraint." Yet, the Supreme Court may hesitate to step in next time. One reason is that its legitimacy has been under a cloud since Bush v. Gore, and only got worse when it moved to overturn Roe v. Wade.

Just a few years ago the Court’s liberal wing was led by Ruth Bader Ginsberg and Stephen Breyer, both Bill Clinton appointees. In Bush v. Gore, they were joined in dissent by John Paul Stevens, a moderate appointed by Gerald Ford, and David H. Souter, appointed by Bush's father. Souter was also one third of the court's centrist troika, which included Reagan appointees Anthony Kennedy and Sandra Day O'Connor. 

Between 2008 and 2016 President Obama’s appointments of two women — Sonia Sotomayor and Elena Kagan — to replace  Souter and Stevens did not alter the basic ideological balance. But Trump’s appointment of three judges in four years (2017-2020) moved things radically right. Today John Roberts, the conservative Chief Justice, no longer controls his allies.

In 1992, the liberal majority revealed its power when upholding Roe v. Wade as a protected "liberty" under the Constitution. Admitting that political factors underlay their opinion, they made the argument that "changed circumstances may impose new obligations" and warned that overturning Roe would create tremendous political and social turmoil. 

On the other hand, Kennedy and O'Connor joined with the conservative triumvirate -- the combative Antonin Scalia, the equally partisan William Rehnquist, and their silent partner Clarence Thomas — in the fateful Dec. 12, 2000 ruling that made George W. Bush president. Twenty-two years later only Thomas remains. But the conservative replacements — Alito, picked by George W. Bush, and Trump’s troika — Gorsuch, Kavanaugh and Barrett —  are even more nakedly partisan.

In his dissent in Bush v. Gore, Stevens said the majority's choice played into the most cynical attitudes about judges, and would undermine public confidence. An understatement, it turns out. He also wrote, "Although we may never know with complete certainty the identity of the winner of this year's presidential election, 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.”

In 2024, we really may never know who actually won the presidential election. It could be due to cyber war, sour grapes or simple incompetence. But more "judicial activism" is the last thing people will want or accept when the next crisis comes. It’s a recipe for state’s rights and legal chaos.

Doubts about the independence and fairness of courts have been building for a while. The looming decision to essentially rescind the right to an abortion could be a fatal blow to the shaky legitimacy of this final institutional guardrail. Echoing Scalia's dissent when his colleagues declined to overturn Roe, interference — in his case, after the 2000 presidential election — "fanned into life an issue that has inflamed our national politics in general."