John Paul Stevens: Bush v. Gore Decision Rationale Was 'Unacceptable'

[kpete]

Source: Salon

Former Supreme Court Justice John Paul Stevens said Thursday night that he’s come to the realization that the rationale behind the court’s Bush v. Gore decision that effectively decided the 2000 presidential election “was really quite unacceptable” because it differentiated between so-called “hanging chads” and “dimpled chads.” That distinction, he told a gala event for the liberal watchdog group Public Citizen in Washington, “violated the Equal Protection Clause of the Constitution.” All votes should have been considered the same way, he explained.

Former Justice Sandra Day O’Connor recently expressed regret that the court had taken up the case at all, and Stevens said he was “pleased to hear” about O’Connor’s shift. The liberal Stevens wrote the dissent in that case.

Stevens, who retired in 2010 and is now 93, was introduced as a “rock star” at the event and received applause for holding the record for the most dissents written by a single justice — a whopping 720. Excerpts from his stinging objection to the Citizens United decision were displayed on large posters around the room.


The former justice also praised Chief Justice John Roberts as “intellectually honest” and an able jurist, even though the two disagree on most things. Stevens happened to be at the court on the day the Obamacare decision came down and he said he predicted that morning that Roberts would write the majority opinion to uphold the law. “I was confident that the chief, regardless of his own personal views — and I’m sure he was not happy about the outcome — that he would follow what the law required. And I was right on that one,” Stevens said.

Read more: http://www.salon.com/2013/05/17/stevens_rationale_for_bush_v_gore_was_unacceptable/

[AllyCat]

1. They all come out of the woodwork now after our economy has been ruined

and hundreds of thousands of people have died and been maimed. Thanks SCOTUS for hoisting the worst president of our time onto the world.

[heaven05]

17. exactly

what I was going to question. Now? Why all this now?!!!!!!! Jerks!!!!!!!!!

[xtraxritical]

25. It sells books and raises speaking engagement fees.

[heaven05]

27. thanks

you're right.

[Tippy]

26. Lies have a way of catching up....They want to right this wrong before they meet thei finial Judge..

GOD

[heaven05]

28. yep

Eternity has crossed the minds of some.

[CreekDog]

32. What are you going on about? Stevens voted AGAINST the decision which put Bush in the White House

why are you commenting ignorantly?

no one is forcing you to post on a topic you know nothing about, why are you?

there's nothing wrong with not knowing how each Justice voted on Bush v. Gore, *if you don't actually comment* on that vote!

jeez, before you embarrass yourself more, read some information about the decision:

http://en.wikipedia.org/wiki/Bush_v._Gore

In brief, the breakdown of the decisions was:

Seven justices (the five Justice majority plus Breyer and Souter) agreed that there was an Equal Protection Clause violation in using different standards of counting in different counties.[3]

Five justices agreed that December 12 (the date of the decision) was the deadline Florida had established for recounts (Kennedy, O'Connor, Rehnquist,[31] Scalia and Thomas in support; Breyer, Ginsburg, Souter and Stevens opposed).

Three justices (Rehnquist, Scalia and Thomas) argued that the Florida Supreme Court had acted contrary to the intent of the Florida legislature. However, four justices (Breyer, Souter, Ginsburg, and Stevens) specifically disputed this in their dissenting opinions, and the remaining two Justices (Kennedy and O'Connor) declined to join Rehnquist's concurrence on the matter.

Justice Stevens' dissent (joined by Justices Breyer and Ginsburg) concluded as follows:[37]

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.

[heaven05]

41. yes!

I knew that. Just a generic rant on SCOTUS Justices.

[CreekDog]

44. what is your rant about Justice Stevens --is he too liberal for you?

the most liberal justice in my lifetime?

your generic rant was aimed at him? did it include him?

[heaven05]

48. NO

All who selected the shrub, should suffer the pains of hell for the horror and pain unleashed on hundreds of thousands of human beings, Katrina included. All who didn't have my undying respect. But like the Kennedy assassination, information on the enduring misery will only come out slowly if at all.

[gopiscrap]

56. I fully agree

[Tippy]

51. Don't get all worked up...I now realize I should have named the guilty...

I for one did not believe that some on the court would sink so low....My Thanks to those who tried to save us from Bush...

[sulphurdunn]

74. That was an interesting comment:

"in my lifetime." It made me think of the Warren Court during my lifetime.

[dotymed]

19. You are quite right

(as were they) about the SCOTUS even getting involved in that theft.
In their defense, Stevens did write the dissent and O'Connor admittedly suffers from Alzheimer's so she probably (then too) changed her mind daily.
Bush really enhanced the fascism in this country more than I thought possible.

Also, Obama increasing this notion of the unitary executive and deciding, in secret, who should die/be attacked is disgraceful.

IMO, Bush's selection, opened the door for a completely secretive (and vindictive govt.) where money rules all. Citizens United was not a "happy coincidence."

Unfortunately, Obama has actually made it worse.

[tblue37]

24. Her husband has Alzheimer's, which is why she wanted a Republican

president--so she could retire to care for her husband. I haven't seen any reports that she suffers from Alzheimer's, though.

[heaven05]

43. In

some ways things haven't changed. Quite disappointing. But maybe my dreams/expectations were aimed too high.

[mehrrh]

31. Bush v. Gore

This is a fine time to tell us that the SCOTUS was so very wrong. Sandra O'Connor made similar comments recently.
Is this a case of clearing one's conscience?
I know the vote in 2000 was not unanimous -- but a few more loudly expressed opinions from these johnny-come-latelys would have been very welcome and would have changed the course of history.
These justices now see the error of their ways and feel guilty and responsible; so they should.

[24601]

60. Wasn't O'Connor's point that the court didn't need to take the case as opposed to the decision?

[markpkessinger]

35. Stevens wrote the original dissent in the case ....

.. This is not a case of a justice who is now having second thoughts. He disagreed with it at the time.

[AllyCat]

68. I know that. Just all of a sudden, the Supremes are coming out and saying it candidly

Or maybe the lapdog press is finally deciding it's okay to report on it. Just ticks me off what they did. Stevens was a good Justice.

[Hekate]

63. "They"? Justice Stevens wrote the DISSENT in Bush vs. Gore.

He's one of the good guys.

[AllyCat]

69. I know. Please see #68. Maybe Creekdog will do the same after sending a PM

with swearing and other in it.

[Harriety]

2. It's way late to be apoligizing for that huge mistake, doncha think?

[graham4anything]

5. Remember there were 2 decisions. The first was 7 to 2.Stevens had nothing to do with the 5 to 4

[magical thyme]

18. you do realize he wrote the dissent against the decision, right?

"The liberal Stevens wrote the dissent in that case."

It strikes me not so much as an apology as affirmation that he was right.

[NYC Liberal]

23. What does Stevens have to apologize for?

He wrote a very strong dissent in the case.

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.

[CreekDog]

33. Stevens has to apologize for that poster's ignorance

[stevenleser]

76. Stevens didnt make a mistake. He dissented from the majority and wrote the dissenting opinion.

It was a very powerful dissent and said everything that needed to be said.

[AndyA]

3. That's two now.

No doubt about it: America got screwed royally by this decision. 99 percent of us are still suffering because of it, and likely will for years to come.

[Island Deac]

6. For my lifetime and beyond...

but no one believed us. Or worse than that, didn't care. The 1% loved it. They are still reaping the benefits.

[UpInArms]

16. He wrote the dissenting opinion on Bush v Gore - he was never for that decision - so there's only

"one" - O'Connor - who has expressed regret for destroying our justice and electoral systems.

Here is the "wiki" on the written dissent:

Bush v. Gore [edit]

In Bush v. Gore, 531 U.S. 98 (2000), Stevens wrote a scathing dissent on the Court's ruling to stay the recount of votes in Florida during the 2000 presidential election. He believed that the holding displayed "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." He continued, "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."

http://en.wikipedia.org/wiki/John_Paul_Stevens

[AndyA]

54. Yes, I know Stevens wrote the dissent

My observation was that two former Supreme Court Justices have now commented that this decision wasn't such a good one.

[stevenleser]

75. Stevens commented on that at the time. This is nothing new. His dissent said it all.

I do not understand some of the comments here. Some of you are acting as if the justices who dissented did not exist and did not write a dissent that became part of that very public decision.

[AndyA]

78. My observation was that two of the Justices have recently commented on Bush v. Gore

Nothing more, nothing less.

Some of you are so set on finding something wrong with what others write, you're interjecting things that aren't there.

Not everyone is a political expert commentator, DU should be welcome to all with an interest in progressive politics and causes, but criticism such as this does nothing but make DU unpleasant.

[CreekDog]

30. If you don't know that Stevens voted against the decision, why are you commenting on it?

how ignorant is that?

[AndyA]

53. I did it just to provoke a response from you

I never said Stevens voted for the decision.

Putting words where others didn't say them...how ignorant is that?

[CreekDog]

57. you said "that's two now" --well it's only ONE now

only one expressed regret because only one that supported the decision changed their mind.

you said TWO. well, Stevens didn't do anything to regret.

[AndyA]

59. Again, YOUR words not mine.

The only thing Stevens and O'Connor have in common is they have both recently commented on Bush v. Gore negatively.

That's is, indeed, two now. If another one comments on it in the same manner it will be three.

Stop trying to insult others and create problems, posts like yours make DU less pleasant, and are unnecessary.

[graham4anything]

4. Stevens is one of the good ones.If only they stopped after the 7 to 2 to go back to Florida.

I like the comments about Roberts. It is interesting.
I think once the court shifts to 6 to 3 or 7 to 2, Roberts will side with the majority more often than not.

(it goes without saying that without Ralph Nader, the US Supreme Court would not have been needed at all).

[JackN415]

9. Nader was no longer in my book after that. To me he has undone all the good things

he had achieved earlier in his career by spoiling the election.

[spooky3]

11. I agree with you, except I don't think Roberts will begin siding with the majority.

I hope you are right--where the majority is making good decisions.

[rhett o rick]

12. Mr. Nader was exercising his Constitutional right to run for office.

He did not force people to vote for him. They welcomed a third choice. How can his running for office compare with the disaster brought about by the highest court in the land. A court that, IMO, has no oversight. A court that is so powerful they can violate the very Constitution they are sworn to uphold without recourse.

"For lack of a nail the war was lost", but blaming the nail is absurd.

[Jim Lane]

62. You've brilliantly refuted the argument that Nader didn't have the right to run.

Now all you need to do is to find someone who's actually making that argument.

Still, I will concede that you're far from alone in your reaction. In fact, this error is so common that I foresaw your post earlier this week, before this thread even began: http://www.democraticunderground.com/?com=view_post&forum=1002&pid=2848760.

Nader had the Constitutional right to run. Those of us who have a lick of sense have the Constitutional right to criticize his decision to do so.

[rhett o rick]

66. The logic that Ralph Nader is to blame for our current mess is totally absurd.

Go ahead and criticize him. He ran for office. People voted for him. In Florida, Jeb Bush messed with the election process. The conservative SCOTUS overstepped their authority and ruled in favor of Bush. And to the dim-witted, it's all Nader's fault.

[Jim Lane]

67. Yet another straw man.

I don't know of anyone -- any real live person -- who believes that "it's all Nader's fault." (Some people who are justifiably pissed at Nader may have, in the heat of the moment, sometimes overstated his culpability. If that has actually happened, then I agree with you that it was error.)

Nader made his initial mark in tort law. An elementary principle of tort law is that an event can have more than one cause.

There's nothing inconsistent in maintaing (as I and many others do) the truth of all the following propositions:
* The purge of 50,000 or so Florida voters was illegal and was one proximate cause of the Bush presidency.
* The setup of the "butterfly ballots" was improper, whether through incompetence or malevolence, and was one proximate cause of the Bush presidency.
* Nader's decision to exercise his legal right to run in the general election (as opposed to, say, running in the Democratic primaries) was a bad choice because a foreseeable consequence -- one foreseen by many at the time -- was that the practical effect would be to help Bush. Although not everyone who voted for Nader would, in his absence from the ballot, have voted for Gore, enough of them would have done so (even according to polling cited by Nader himself) that, with no Nader on the ballot, Gore would have won Florida by a cheat-proof margin. Nader's bad choice was one proximate cause of the Bush presidency.
* The appeal in Bush v. Gore was wrongly decided by the Supreme Court, and that wrong decision was one proximate cause of the Bush presidency.

Other causes could be listed as well.

I agree with your reference to the voter purge (although I think that Katherine Harris deserves to be blamed for that along with Jeb Bush). Yet one could make the same comment about the purge that the Naderites always make in defense of Nader's candidacy: It wouldn't have resulted in a Bush presidency if not for the Supreme Court's action. Yet, somehow, no one here ever suggests that the wrongful SCOTUS decision somehow retroactively exonerated Harris and Bush for the voter purge. The concept that an event can have multiple causes is applied to Harris and Bush but is mysteriously suspended when it comes to Nader.

[rhett o rick]

70. "I don't know of anyone -- any real live person -- who believes that "it's all Nader's fault." "

Then you havent been paying attention.

[hypergrove]

22. you're a democrat?

and i use the small 'd'.... your sour grapes is revolting. everyone is entitled to run, so stop hanging this around his neck. Your need for a scapegoat is appalling.

[iamthebandfanman]

7. Unfortunately for all of us, regret

doesn't erase the last 13 years or the dead bodies buried in the ground.

[JackN415]

10. +1

[CreekDog]

29. he voted against the Bush v. Gore decision --don't you know anything?

what does he have to regret?

[iamthebandfanman]

45. lmao

wanna try re-reading that OP?

"Former Justice Sandra Day O’Connor recently expressed regret that the court had taken up the case at all, and Stevens said he was “pleased to hear” about O’Connor’s shift. "

notice the placement of the word regret?

SHE voted for Bush. She expressed regret. Not him.

Yikes.

[BlueStreak]

8. "He's come to the realization" !????

What? That makes no sense. He dissented. Surely it didn't take him 13 years to figure out WHY he dissented.

[spooky3]

13. yes, that writer is throwing his own spin (and ignorance) into that line.

[rhett o rick]

14. His conscience is bothering him. He was a member of a SCOTUS that overstepped it's

authority and possible destroyed our democracy. I believe that Sandra (disrespect intended) thought that the decision was inconsequential so she voted with the Elite. It was just a game of politics. But as our democracy sinks farther and farther, they realize what they were a part of.

The founders never intended for the SCOTUS to have suck power.

[markpkessinger]

37. Why should Stevens' conscience be bothering him?

He wrote a strong dissent from the ruling, and has nothing whatsoever to apologize for or to feell guilty about.

[rhett o rick]

49. That would be a question for him. It sounds like it to me. Maybe he doesnt think he did

enough to sway the decision.

[Downtown Hound]

15. He was a dissenter, so I give him props for that

I only wish he hadn't waited all this time to speak out. We could have used him about ten years ago.

[markpkessinger]

38. Beyond issuing a very strong dissent....

What more is it that you imagine he could have done?

[Downtown Hound]

58. Gone on every news program, every pundit show, every talk show

and let the American people know about the coup that just happened. Had the dissenters been a little more forceful, things might have been different. As it was, pretty much nobody except for a few folks here and there did anything to stop it.

[stevenleser]

79. That would have done nothing. The simple answer to that is...

there are nine justices and five other supreme court justices, including the Chief Justice, disagreed with you. That's why we have nine justices.

That's an easy one for a talking head to deal with. The decision would have stood and Stevens would have looked like an ass for doing what no other supreme court justice has done in the modern history of the court, taken to the airwaves to protest a decision.

Really, Monday morning quarterbacking the four SCOTUS justices who actually did the right thing and voted the right way and penned a stinging dissent is the wrong focus for anyone upset at the stolen election.

[Downtown Hound]

80. I'm not saying it wouldn't have stood

What I am saying is that he could have done more, and should have.

[liberal N proud]

20. Too fucking little too fucking late!!!!!!

[CreekDog]

34. He strongly wrote and voted against that decision

is it too late for you know that?

apparently so.

Bush v. Gore

In Bush v. Gore, 531 U.S. 98 (2000), Stevens wrote a scathing dissent on the Court's ruling to stay the recount of votes in Florida during the 2000 presidential election. He believed that the holding displayed "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." He continued, "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."

(source wikipedia)

[markpkessinger]

36. The guy penned a stinging diessent at the time . . .

. . . What more should he have done?

[olddad56]

55. way. way too little, too late. But never too late to put Bush behind bars.

[bemildred]

21. I would say "political".

But I don't have to be discreet.

[Hell Hath No Fury]

39. Good lord -

the ignorance of some here. John Paul Stevens was one of our best Justices, coming down on the right side almost every time, including Bush v. Gore.

Bush v. Gore was, at it's core according to the Minority, about the State of Florida having the final say in their election process v. the Federal Government. The Supreme's Majority's opinion rationale is what Stevens is referring to. This in particular:

"Moreover, the court’s interpretation of 'legal vote,' and hence its decision to order a contest-period recount, plainly departed from the legislative scheme. Florida statutory law cannot reasonably be thought to require the counting of improperly marked ballots. Each Florida precinct before election day provides instructions on how properly to cast a vote, §101.46; each polling place on election day contains a working model of the voting machine it uses, §101.5611; and each voting booth contains a sample ballot, §101.46. In precincts using punch-card ballots, voters are instructed to punch out the ballot cleanly:

AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD.

Instructions to Voters, quoted in Touchston v. McDermott, 2000 WL 1781942, *6 & n. 19 (CA11) (Tjoflat, J., dissenting). No reasonable person would call it 'an error in the vote tabulation,' Fla. Stat. §102.166(5), or a “rejection of legal votes,” Fla. Stat. §102.168(3)(c),4 when electronic or electromechanical equipment performs precisely in the manner designed, and fails to count those ballots that are not marked in the manner that these voting instructions explicitly and prominently specify. The scheme that the Florida Supreme Court’s opinion attributes to the legislature is one in which machines are required to be 'capable of correctly counting votes,' §101.5606(4), but which nonetheless regularly produces elections in which legal votes are predictably not tabulated, so that in close elections manual recounts are regularly required. This is of course absurd. The Secretary of State, who is authorized by law to issue binding interpretations of the election code, §§97.012, 106.23, rejected this peculiar reading of the statutes. See DE 00—13 (opinion of the Division of Elections). The Florida Supreme Court, although it must defer to the Secretary’s interpretations, see Krivanek v. Take Back Tampa Political Committee, 625 So. 2d 840, 844 (Fla. 1993), rejected her reasonable interpretation and embraced the peculiar one. See Palm Beach County Canvassing Board v. Harris, No. SC00—2346 (Dec. 11, 2000) (Harris III).

But as we indicated in our remand of the earlier case, in a Presidential election the clearly expressed intent of the legislature must prevail. And there is no basis for reading the Florida statutes as requiring the counting of improperly marked ballots, as an examination of the Florida Supreme Court’s textual analysis shows. We will not parse that analysis here, except to note that the principal provision of the election code on which it relied, §101.5614(5), was, as the Chief Justice pointed out in his dissent from Harris II, entirely irrelevant. See Gore v. Harris, No. SC00-2431, slip op., at 50 (Dec. 8, 2000). The State’s Attorney General (who was supporting the Gore challenge) confirmed in oral argument here that never before the present election had a manual recount been conducted on the basis of the contention that “undervotes” should have been examined to determine voter intent. Tr. of Oral Arg. in Bush v. Palm Beach County Canvassing Bd., 39—40 (Dec. 1, 2000); cf. Broward County Canvassing Board v. Hogan, 607 So. 2d 508, 509 (Fla. Ct. App. 1992) (denial of recount for failure to count ballots with “hanging paper chads”). For the court to step away from this established practice, prescribed by the Secretary of State, the state official charged by the legislature with “responsibility to … [o]btain and maintain uniformity in the application, operation, and interpretation of the election laws,” §97.012(1), was to depart from the legislative scheme."

[CreekDog]

40. For those keeping score, responses in this thread are running 14 False and 17 True

so reality, as in, what actually happened (Stevens voted against Bush v. Gore and wrote a STRONG dissent on it at the time) is agreed with by 17 posts here in this thread.

and we can be thankful that ONLY 14 people think STEVENS supported Bush v. Gore.

yayyyy.

reality beat ignorance ever so SLIGHTLY!

[RC]

50. The deficit in reading comprehension around here is embarrassing.

Especially for a supposed, more or less, Left leaning, Center and Left of Center, Democratic, political message board.
The Supreme Court ruling of bu$h vs Gore was NOT unanimous, as some seem to think around here.
Stevens, after rethinking things and seeing what happened since then, is more convinced than ever he was correct in his opinion at the time. What is so hard to grasp about that?

[Hekate]

64. It is just so bloody disheartening, is all I can say

[freshwest]

65. I know, sometimes it's like watching Faux news.

[stevenleser]

77. The responses require a double face palm. In fact, I only wish I had more arms and hands so that...

I could give those responses a triple or quadruple face palm.







http://1.bp.blogspot.com/_xoqAOYMblow/TKJ1nJQ0O4I/AAAAAAAAAAs/jPjAcdDampI/s1600/triple+facepalm.jpg

[Duval]

42. He's right now and

he was right then. Thanks kpete for reminding us to be grateful for Former Supreme Court Justice Stevens.

[JDPriestly]

46. Most of us on DU agreed with Stevens way back in 2000. And he is still right.

As for Roberts, I share Justice Stevens' opinion. And I think Roberts' views may mellow as his children get older.

[Orsino]

47. He has "come to the realization"? After twelve years of deliberation?

Were he open about being a politician, I believe he'd say that his "views are evolving."

[longship]

52. You do know that Stevens wrote the *dissenting* opinion in Bush v Gore, don't you?

Sheesh!

[Samantha]

71. The words on that dissent sizzled with anger

but the truly amazing thing is that this man is a Republican. He is in my group of top 5 people I admire the most.

Sam

[sigmasix]

72. pre fox "news" republicans

True Republicans are patriotic and reasonable, hence the honesty from Stevens.

The new republican/fox "news" party is filled with right wing extremists that wish to reverse the outcome of the civil war. The Republican party used to represent American conservative ideology- an ideology that embraced America's history of expanding liberty and expressing a government and society ruled by secular knowledge of right and wrong.
The extremists in control of the GOP are not conservatives and, until relatively recently, they were considered by the republican party to be an embarrassment to conservatives because of thier common origins and economic policies. Stevens is an honorable man and exemplary servant of the people- it will be a long time before the new republican/fox "news" party produces an intelligent, patriotic justice that places country before partisan politics.

[lovuian]

61. the Supreme court should never had ruled in the vote

and handed it to the criminals

[Strelnikov_]

73. Gee . . ya think? n/t