That the five justices in the majority vote favoring the Republican nominee all had been elevated to the high court by Republican presidents (four by Ronald Reagan, one by George H. W. Bush) meant the outcome would inevitably be seen in starkly political terms.
And so it is today, despite the admonition of Associate Justice Antonin Scalia (one of the pro-Bush five in 2000) that people should simply “Get over it!” as he’s said on a number of occasions.
“Voters who cast ballots incompetently are not entitled to have election officials toil to divine these voters' intentions,” columnist George Will writes in the Washington Post, referring to the chad debacle. “Al Gore got certain Democratic-dominated canvassing boards to turn their recounts into unfettered speculations and hunches about the intentions of voters who submitted inscrutable ballots.”
“Gore's lawyers persuaded the easily persuadable state Supreme Court – with a majority of Democratic appointees – to rewrite the law [requiring counties to certify their results within seven days],” Will writes.
In an essay in the New Yorker magazine, Jeffrey Toobin sees it differently:
“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,” writes Toobin, a lawyer and legal analyst for CNN. “[But] 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.”
