In a New Yorker essay marking the tenth anniversary of Bush v. Gore, Jeffrey Toobin excoriates the Supreme Court for its decision. He also finds “echoes” of Bush v. Gore’s “judicial activism” in a number of high-profile cases from the Roberts Court.
Toobin shares with many other Bush v. Gore critics a discreditable habit of making irrelevant and demonstrably false statements. (For a very concise reminder of what the case actually said and did, see this article of mine.) For example:
1. Toobin suggests that there is something sinister in the fact that the Supreme Court has not yet cited Bush v. Gore in another case. Bush v. Gore simply applied well-established equal protection principles to invalidate a stunning and anomalous departure from those principles by the Florida Supreme Court. Nothing in the Bush v. Gore opinion suggests that its principles would be inapplicable in other cases, and there would hardly be an occasion to cite it unless some lower court again departed from those principles. Not surprisingly, Bush v. Gore is frequently cited by the lower courts, which evidently understand that it is indeed a precedent that they are required to respect.
2. Toobin says that the Florida courts “order[ed] a statewide recount of all undervotes and overvotes.” The Florida courts did no such thing, and the point is significant for the reasons given in Bush v. Gore and in Chief Justice Wells’ dissenting opinion in the Florida Supreme Court. (Toobin doesn’t mention that three of the seven Florida justices, all Democrats, dissented from the decision that the U.S. Supreme Court reversed.)
3. Toobin says that Bush v. Gore “stopped the recount once and for all” and “delivered the Presidency to George W. Bush.” Bush v. Gore was decided on Dec. 12, 2000, a scant four days after the Florida Supreme Court ordered the challenged recount. On Dec. 11, the Florida Supreme Court had said in a related case that state law established Dec. 12 as the deadline for final determination of the dispute. Bush v. Gore remanded the case to the Florida court, which could have changed its interpretation of state law and ordered a new recount that complied with the Equal Protection Clause. Al Gore’s lawyers recognized this, even if Toobin doesn’t, but Gore decided to concede the election rather than ask the Florida court to change its interpretation of state law.
4. Toobin accuses the Bush v. Gore majority of behaving inconsistently with their prior views on states rights, equal protection, and judicial restraint. Neither Toobin nor anyone else has ever identified a single case in which any member of the Bush v. Gore majority had so much as suggested that the states have a right to violate the Equal Protection Clause or that equal protection doctrine permits what the Florida court was doing.
Toobin also repeatedly mischaracterizes decisions of the Roberts Court in order to make them sound like “judicial activism”:
Toobin attacks the Parents Involved decision, which struck down what Toobin calls “the voluntary school-integration plans of Seattle and Louisville.” It is true that the government agencies that made racially discriminatory school assignments in this case were not ordered to do so by the courts, but the victims of the discrimination did not voluntarily have their rights violated.
Toobin says that Citizens United “contradicts about a century of law at the Court.” As Justice Alito immediately and correctly recognized during the State of the Union speech, this is not true.
Toobin attacks two decisions on the right to keep and bear arms for “[b]randishing a novel interpretation of the Second Amendment.” In fact, that interpretation was widely held during the Founding period, and has had wide support throughout our history. The interpretation the Court recently rejected (and the one Toobin apparently favors) was first adopted more than a century after the ratification of the Bill of Rights, by a state court. That twentieth-century innovation, which the Supreme Court never adopted, was the real novelty.
Perhaps the most remarkable aspect of Toobin’s screed is his sarcastic comment that “the Court has continued to use the equal-protection clause as a vehicle to protect white people.” It is certainly true that the Court has done this. And it’s undeniable that Bush v. Gore “found a violation of the rights of George W. Bush, a white man.” If Toobin thinks that the Equal Protection Clause doesn’t protect white people, he is the one who is “[b]randishing a novel interpretation” of the Constitution. Maybe we can look forward to a follow-up article in which he savagely attacks those who disagree with him, including Thurgood Marshall, William J. Brennan, Earl Warren, and all four of the dissenters in Bush v. Gore.
Nelson Lund is professor of law at the George Mason University School of Law.