This week marks 23 long and weary years since the Supreme Court delivered its landmark opinion in Bush v. Gore. Time sure does fly when democracy is eroding before your very eyes.
The court’s decision ended Florida’s recount of its 2000 election results, where Republican presidential nominee George W. Bush held a slim 537-vote lead, guaranteeing that no matter what the final count would have been, Florida’s 25 electors would go to Bush.
The election itself was a historic nightmare plagued by voting machine problems and infamous “hanging chads” that spoiled whole ballots. The legitimacy of both the final vote total and the court’s legitimacy have been hotly debated ever since. Relitigating the 2000 election is an uninteresting and pointless endeavor. The past is immutable.
More important to our country now is understanding how Bush v. Gore ushered in an era that has culminated in the Republican Party’s abandonment of democracy in favor of Trump-styled strongman authoritarianism.
Americans don’t trust institutions. They certainly don’t trust the Supreme Court, a body of which 58 percent of Americans now disapprove, and of which a near-record-low 41 percent of Americans support. In the short scope of political analysis, the court’s credibility problems are linked to its indefensible 2022 decision overturning federal abortion rights. The truth is, the court’s accelerating race into disrepute began in earnest during the fight over Bush v. Gore.
The case, argued and decided over the course of just two days, smacked of political favoritism. Many of the Republican attorneys representing Bush had clerked for the very justices they now appealed to, while right-leaning special interest groups put immense internal pressure on loyalists such as the ethics-challenged Justice Clarence Thomas to lobby the court’s conservatives.
The years that followed saw Bush loyalists showered with political rewards from a grateful Republican Party. Bush campaign attorneys John Roberts, Brett Kavanaugh and Amy Coney Barrett all enjoy lifetime appointments to the Supreme Court. Another Bush attorney, Garry Malphrus, received a plush appointment as an immigration judge. Matt Schlapp, who heads the annual CPAC conference, became Bush’s White House political director. Even Roger Stone, the notorious Trump enforcer, returned from political exile after his leading role disrupting the Florida recount in the first place.
Many of them are still dug into the walls of our democracy, gleefully chewing away at our national wiring. Roberts, Kavanaugh and Barrett have dismantled much of the legal progress America has made over the last century, and now seem ready to dissolve the entire administrative state. But more than that, their actions helped supercharge public distrust in institutions to the point that some, notably Stone, became intimately involved in an attempt to derail the entire democratic process by force on Jan. 6, 2021.
In the decades since Bush v. Gore, a Supreme Court replete with that case’s architects has gone on to dismantle huge swaths of the Voting Rights Act of 1965 while all but removing the court’s authority to police egregious examples of partisan gerrymandering. In a sense, the Roberts court has succeeded in preventing another Bush v. Gore, for the simple reason that many of the Floridians who cast ballots in 2000 would not be allowed to vote at all under the state’s current, far more restrictive voter suppression regime.
The America that grew from Bush v. Gore is one in which many young people believe that our entire judicial system is hopelessly corrupted by political extremism; in which more than a thousand people have been found guilty of trying to attack a Congress and a democracy they view as illegitimate, even though their viewpoint is now openly espoused by the GOP itself.
The idea that Republicans deserve by right to govern America, and that the law should be bent to achieve that goal, was once an extreme position only whispered by Republican attorneys cloistered away in a Florida conference room. Twenty-three years later, it has become a litmus test for who qualifies as a Republican in good standing. We would be foolish as a nation to expect any of the men and women involved in Bush v. Gore to save us from its malignant aftereffects.
Three Supreme Court justices who once loyally advanced Bush v. Gore will now be responsible for deciding if another Republican president should be granted permanent immunity from prosecution for attempting to overturn the 2020 election’s result. Even if they ultimately decide that Donald Trump is subject to the same laws as the rest of us, the justices will make their decision in a political climate where many Americans long ago stopped believing in the law.
After two decades striving to build a permanent Republican majority in American politics, the architects of Bush v. Gore are now perilously close to succeeding. All the worse for democracy.
Max Burns is a veteran Democratic strategist and founder of Third Degree Strategies.