One of the most consequential Supreme Court actions in recent U.S. history was its 2000 decision in Bush v. Gore. (Imagine how differently the United States might have reacted to the September 11, 2001, attacks on the World Trade Center if Gore had been president rather than Bush—no invasion of Iraq; almost certainly a speedier and more determined effort to wean the United States from dependence on oil from the Middle East; and a greater priority given to the development of renewable energy sources to curb climate change.)
The decision blocked a recount of ballots in the exceptionally close race in Florida, handing the presidency to George W. Bush. Critics were quick to note that the 5–4 decision split perfectly along the Court’s conservative-liberal lines. Many were outraged that the majority justices were suddenly willing to insert federal authority in this case despite their frequently expressed reservations about judicial activism and their advocacy of states’ rights and a narrow interpretation of the equal protection clause. As one legal scholar observed, “I do not know a single person who believes that if the parties were reversed, if Gore were challenging a recount ordered by a Republican Florida Supreme Court…[the majority] would have reached for a startling and innovative principle of constitutional law to hand Gore the victory” (Stone 2001).
While most Democrats thought the majority’s decision was tainted by ideological and motivational bias, the five justices behind that opinion insisted otherwise. They maintained that they were applying the law in an even-handed fashion. Justice Clarence Thomas told a group of students in Washington, D.C., that the decision was not in any way influenced by parti sanship (Balkin 2001). Justice Antonin Scalia has been even more dismissive of any such claim, telling an audience at Wesleyan University to “get over it” (“Scalia: Get over it” 2012). Conservative pundits, it should be noted, agreed with Scalia and Thomas and, we suspect, would contend that it was the four dissenting liberal justices whose opinions in the case had been influenced by their political leanings.