It’s a bit of a tradition here at Literature R Us to speak ill of the dead, and the newly deceased Supreme Court Justice Sandra Day O’Connor will form no exception to that rule. Sandra was one of the “Infamous Five” who formed the corrupt majority of the infamous case of Bush v. Gore, which not only grossly and gratuitously overruled the Florida Supreme Court’s interpretation of, you know, Florida law, but slam dunked a George W. Bush victory in the 2000 presidential election by declaring that the recount of that state’s election results would be halted because, well because George W. Bush was only ahead by 327 votes and if the recount continued, anything might happen! Bush might even lose! And we can’t have that!
No matter that Al Gore had a nation-wide plurality of more than half a million votes. The Infamous Five—Sandra, Anthony Kennedy, Clarence Thomas, Antonine “Foghorn” Scalia, and Chief Justice William Rehnquist liked running the Court and didn’t want any damn hippie Democrat appointing a bunch of damn hippie justices to tell them what to do. And, according to recently released documents from the files of deceased Justice John Paul Stevens, Sandra was in such a hurry to big foot the Florida Supreme Court (which had a four-three Democratic majority) that she circulated a memo outlining her grounds for intervening (and overturning) the Florida Supreme Court’s actions on the case before presentation of oral arguments before the Court. Because who needs to hear a case before you decide it? Particularly an important one!
CNN reporter Joan Biskupic describes, in a May 3, 2023 article, how Sandra’s memo gave her right-wing cronies on the bench legal cover for their power grab, vital because the stench coming from the “argument” put together by legal plug uglies Rehnquist, Scalia, and Thomas was just too rank for country club types like O’Connor and Kennedy to handle. What would Biff and Bufy say if we tried to get away with that one?
Wikipedia gives you background on the case, while Yale law professor Jack Balkin tells us how five hypocrites in robes screwed over the American people.
Afterwords
In true Republican moderate fashion, Sandy expressed “moderate” regret over Bush v. Gore a mere 13 years after the decision, telling the Chicago Tribune “It [the Court] took the case and decided it at a time when it was still a big election issue. Maybe the court should have said, ‘We’re not going to take it, goodbye.’” Maybe, Sandra! Maybe!
Unlike a lot of people, I don’t “revere” Sandra Day for voting to essentially maintain Roe v. Wade in a famous 1991 decision, Planned Parenthood v. Casey. To me, this was just another result-oriented decision, one of dozens the Court turns out whenever the chips are down.1 I’ve always thought that Roe v. Wade was an abysmal decision, and now that’s been overturned, the people are deciding. And all those folks who’ve been shouting “Abortion is murder!” for the past 50 years are finding out that the American people don’t agree with them.
Addendum—Why Bush v. Gore was the very worst Supreme Court decision ever
Bush v. Gore, in many ways, was not the “worst” Supreme Court decision ever—in terms of impact, that “laurel” would probably go to Plessy v. Ferguson, which upheld segregation, while the infamous Dred Scott decision is the most repugnant morally, and Roe v. Wade perhaps the most blatantly overreaching, an attempt, like Dred Scott, to “solve” an immensely contentious social issue by judicial fiat.
But all three, and any other you can come up with—Korematsu v. United States, which upheld the interning of U.S. citizens of Japanese descent, for example—were clearly felt by the perpetrators to be “valid”—a “correct” application of constitutional principles to the case at hand, and generally applicable as well to any and all similar cases that might arise in the future.
The Bush v. Gore majority decision was not like this—not a simple application of generally valid constitutional principles but rather a willful and guileful legal artifice—an act, not of judicial impartiality but of “zealous advocacy”—to advance without scruple the interests of one of the parties—that is to say, George Bush, the Republican candidate—and the “interest” of the five majority justices as well—to ensure that “their team” would win, not only now, but in the indefinite future. Sandra Day O’Connor should not escape the opprobrium of history simply because of her sex and “moderate” views on social issues like abortion and affirmative action.
1. As a (very) crude rule of thumb, it can be said that the Court decides second-rate cases in a first-rate manner and first-rate cases in a second-rate manner. As Justice Oliver Wendell Holmes said, “Hard cases make bad law” and “Great cases make bad law”. Because when the stakes are high, Supreme Court justices are always going to put their thumb on the scales.
