Issue 3: George W. Bush and Richard Cheney, Petitioners v. Albert Gore, Jr. and Joseph Lieberman, et al.


This is the third issue of “The Supreme Court is Usually Badass”, where I discuss a Supreme Court case and my opinion on its effects throughout U.S. History. I would also enjoy others to participate and discuss the decisions of the case, if one feels so inclined. Also, I’ll get to some more recent ones soon; however, the older ones were a little more epic.

George W. Bush and Richard Cheney, Petitioners v. Albert Gore, Jr. and Joseph Lieberman, et al. 531 U.S. 98 (2000) (


The infamous 2000 Presidential Election was particularly awesome. Most people do not know that the U.S. Supreme Court single-handedly decided the results of the election in Bush v. Gore. Obviously, the results from states other than Florida were important, but the decision made by the Court in this case was legend–wait for it–dary. In short, George W. Bush’s margin of victory in the State of Florida was less than .5% (1,784 votes). In Florida, a margin of victory so small was accompanied by a statutorily-mandated automatic machine recount. This recount, as mandated, had to be completed by all counties within seven days of the election day. As such, the recounted results had to be received by the Florida Secretary of State Katherine Harris by November 14, 2000 at 5:00 PM EST. Several counties conducting the mandatory recount did not believe that they could complete the recount in time. On November 14, 2000 at 5:00 PM EST, Katherine Harris had received certified returns from 67 counties, while Palm Beach, Broward and Miami-Dade counties were still conducting the recount. At 2:00 PM EST the following day, Ms. Harris determined that none of the counties requiring extension were justified in the need for an extension. As such, on Sunday, November 26, 2000, Katherine Harris certified George W. Bush as the winner of the 25 Florida electoral votes; this put Bush at 271 (of the 270 required) electoral votes, making him the next President of the United States. Hilarity (and litigation) ensues.

On December 9, 2000, while Florida counties continued to recount due to issues, the U.S. Supreme Court, as a precursor to an actual decision, stayed the Florida recount in a 5-4 vote (at this time, there were 5 conservative appointed justices and 4 liberal appointed justices…guess how they voted). Justice Scalia, in his consenting opinion to stay the recount stated:

“It suffices to say that the issuance of the stay suggests that a majority of the Court, while not deciding the issues presented, believe that the petitioner has a substantial probability of success. The issue is not, as the dissent puts it, whether “[c]ounting every legally cast vote ca[n] constitute irreparable harm.” One of the principal issues in the appeal we have accepted is precisely whether the votes that have been ordered to be counted are, under a reasonable interpretation of Florida law, “legally cast vote[s].” The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.”

The U.S. Supreme Court heard the oral arguments for Bush v. Gore on December 11, 2000. Continued hilarity ensues.

Synopsis of Proceedings

There is nothing particularly interesting about the proceedings.

Questions before the Court

  1. Were the recounts, as they were being conducted, constitutional (under the Equal Protection Clause [])?
  2. If the recounts were unconstitutional, what is the remedy?


In its per curiam ( decision on December 12, 2000, just one day after oral arguments, the Court was heavily divided. The decisions are as follows:

  1. In a 7-2 decision (Justices Kennedy, O’Connor, Rehnquist, Scalia, Thomas, Breyer and Souter in support, with Justices Ginsburg and Stevens in opposition), the Court ruled that different standards of counting different counties was in violation of the Equal Protection Clause.
  2. In a 5-4 decision (Justices Kennedy, O’Connor, Rehnquist, Scalia and Thomas in support, with Justices Breyer, Ginsburg, Souter and Stevens in opposition), the Court ruled that the recount was henceforth null and void. The dissenting justices felt as though the recount should continue using contiguous standards of recounting as set forth by the Florida Supreme Court.
  3. In 3-4-2 decision, Justices Rehnquist, Scalia and Thomas felt that the Florida Supreme Court deliberately acted contrary to the inent of the Florida legislature, Justices Breyer, Souter, Ginsburg and Stevens specifically disputed this claim in their dissenting opinions and Justices Kennedy and O’Connor refused to join Rehnquist’s concurrence on (3).

This decision caused the subsequent remedy as issued by the Court to end the recount permanently. The four dissenting justices issued a scathing opinion, with the following excerpt (as written by Justice Stevens):

“What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. 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.”


The most interesting (and highly controversial) part of this tumultuous tale is that the decision, itself, stated that it could never be cited as precedent. Yes, this means that the U.S. Supreme Court issued an opinion (which favored the Court’s political leanings), that stated it could not be used as precedent in future proceedings. This begs the question as to whether the decision was made upon sound jurisprudence at all (according to the dissenting opinion, it was not). Furthermore, many sources conducted a recount after Bush had been sworn in and determined that Gore had received more votes. Therefore, had the recount continued, Al Gore may have become the 43rd President of the United States.