The Bush v. Gore decision was finally released at 10 p.m., Dec. 12, just two hours before the deadline for completing the recount. Though the court could have extended the deadline to give Florida an opportunity to conduct a full and fair recount under the 14th Amendment rationale, the five pro-Bush justices wouldn't do that.
After having delayed any remedy up to the deadline, the five justices demanded that any revised plan and recount be finished in 120 minutes, a patently impossible task. The clear message was that the pro-Bush Five had started out with their desired outcome -- putting Bush in the White House -- and had simply dressed up their partisanship with fancy legal words.
In a dissenting opinion, Justice Stevens politely reached that obvious conclusion, writing that the majority's action in blocking the Florida recount "can only lend credence to the most cynical appraisal of the work of judges throughout the land."
Justices Stephen Breyer and Ruth Bader Ginsburg, appointees of President Bill Clinton, said in another dissent, "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."
Tacitly recognizing the nonsensical nature of its own ruling, the majority justices barred the Bush v. Gore decision from ever being cited as a precedent in any other case. It was a one-time deal to put Bush in the White House.
The next day, Al Gore -- whose final national plurality by then had grown to about 540,000 votes, more than the winning margins for John F. Kennedy in 1960 or Richard Nixon in 1968 -- conceded Election 2000 to George W. Bush.
After Gore's concession, Justice Thomas told a group of high school students that partisan considerations played "zero" part in the court's decisions. Later, asked whether Thomas's assessment was accurate, Rehnquist answered, "Absolutely."
In other words, the Republican justices were behaving like the most dishonest and cynical of politicians, taking an action for a clearly self-interested reason and then lying to the public about the motivation.
It was like a line from the latest episode of "Game of Thrones," in which one courtier asserts that "knowledge is power" only to have the villainous mother of the king tell her guards to restrain the courtier at knife point. She then instructs the terrified man that "power is power."
Appointing Judges
In December 2000, what was at stake was not only the enormous powers of the presidency but one specific power in particular, the ability to appoint federal judges and justices. If Gore had been allowed to become president, that would have meant at least 12 consecutive years of Democratic control of the judicial appointment power, thus threatening Republican domination of the Supreme Court and the lower courts.
For one, Sandra Day O'Connor was eager to retire so she could tend to her ailing husband, but she didn't want to give a Democratic president the opportunity to replace her. Other GOP-appointed justices also were getting on in years.
However, with Bush in the White House, any Supreme Court vacancies would be filled by Republican jurists and the lower courts could get a fresh infusion of Republican judges. For instance, John Roberts was then just a lawyer in private practice, but Bush named him to the U.S. Court of Appeals in 2003.
So, in 2005 when Rehnquist's death opened up the position of Chief Justice, Bush could easily nominate Roberts to head the Supreme Court. When O'Connor finally stepped down in 2006, her seat was filled by right-wing Republican Judge Samuel Alito.
Today, with the judicial appointment power back in play in Election 2012, the reconstituted Republican partisan majority -- with Roberts and Alito replacing Rehnquist and O'Connor -- is tempted to deliver a powerful body blow to the reelection hopes of President Obama by striking down his signature legislative accomplishment as "unconstitutional."
From their hostile questioning -- and silly hypothetical challenges comparing a health insurance mandate to mandatory broccoli purchases -- it appeared that the GOP Five are inclined to strike down nearly the entire Affordable Care Act, though it is difficult to divine precisely where justices will come down based on their tone in oral arguments.
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