The Modern Independent

10 Years After Bush v. Gore: The Rise of Conservative Judicial Activism

Former Supreme Court justice, John Paul Stevens, was on 60 Minutes over the weekend.  In his interview, he called the high Court’s 2000 decision in Bush v. Gore—the highly partisan 5-4 decision that stopped the Florida recount and made George W. Bush President—one of the greatest blunders in Supreme Court history.

His comments have ripped the scabs off old partisan wounds just in time for the 10 year anniversary of the fateful decision.  In the new issue of The New Yorker, for example, Jeffrey Toobin explores the troubling legacy of Bush v. Gore.

He writes:

What made the decision in Bush v. Gore so startling was that it was the work of Justices who were considered, to greater or lesser extents, judicial conservatives. On many occasions, these Justices had said that they believed in the preëminence of states’ rights, in a narrow conception of the equal-protection clause of the Fourteenth Amendment, and, above all, in judicial restraint. Bush v. Gore violated those principles. The Supreme Court stepped into the case even though the Florida Supreme Court had been interpreting Florida law; the majority found a violation of the rights of George W. Bush, a white man, to equal protection when these same Justices were becoming ever more stingy in finding violations of the rights of African-Americans; and the Court stopped the recount even before it was completed, and before the Florida courts had a chance to iron out any problems—a classic example of judicial activism, not judicial restraint, by the majority.

More telling, however, Toobin believes the case represents a “revealing prologue to what the Supreme Court has since become” and gives insight into how the conservative wing of the Court now operates.

Toobin’s conclusion, especially under the new Robert’s Court: “As in Bush v. Gore, nominally conservative Justices no longer operate by the rules of traditional judicial conservatism.”

Indeed, judicial conservatism, Toobin reminds us, was “once principally defined as a philosophy of deference to the democratically elected branches of government.”  But, according to Toobin, the signature characteristic of the Robert’s Court has been it willingness to ignore federalism and the will of legislative bodies when it comes to striking down environmental legislation, campaign finance law, gun control measures, doctor-assisted suicide for the terminally ill, and local efforts to voluntary school integration.

The true radicals on the Court have always been within the Court’s conservative wing.  As Scott Lemieux notes, “the tradition of conservative ‘judicial restraint’ that Toobin cites is just a myth; conservatives, over the history of the Supreme Court, have only shown restraint when greater activism would tend to lead to substantively liberal results.”

Although conservative judicial activism has certainly accelerated under the Robert’s Court, I think Lemieux is correct that conservatives have always only paid lip-service to the virtues of judicial restraint.  If one were to use deference to democratically elected legislatures and the popular will of the people as the gold-standard of restraint, Justice Stephen Breyer (a Clinton appointee and member of the liberal wing) would likely most embody the essence of judicial restraint.

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