Misgivings about a decision, or the result in retrospect?

Talking Points Memo has one of several articles on Sandra Day O’Connor and Gore v. Bush How Sandra Day O’Connor’s Vote In Bush v. Gore Helped Unravel Her Own Legacy  <read>

Thirteen years after her pivotal swing vote in Bush v. Gore, retired Justice Sandra Day O’Connor is suggesting it was a mistake for the Supreme Court to take up the case, lamenting as many scholars have that it tarnished the Court’s reputation. But there’s another, indirect casualty of the fallout from the hyper-controversial 2000 case that effectively settled the presidential election for George W. Bush: O’Connor’s own legacy.

In a bit of historical irony, when O’Connor retired in 2006, the man she helped make president replaced her with Samuel Alito, a staunch conservative who proceeded to unravel several major rulings where O’Connor had held the swing vote and had shaped the law — most notably on abortion, campaign finance and racial diversity in education…

Speaking to the Chicago Tribune editorial board last Friday, O’Connor said the Supreme Court “took the case [Bush v. Gore] and decided it at a time when it was still a big election issue. Maybe the court should have said, ‘We’re not going to take it, goodbye.’” She lamented that “probably the Supreme Court added to the problem” when all was said and done.

Sadly, the issue is not if George Bush did a good, poor, or disastrous job and how the decision worked out. The issue is trust in our election system; did we have a legitimate government? What the Court did was conform and harden the 1876 decision that the 12th Amendment and Electoral Count Act are more about formality that about choosing the President as the voters intended. They also followed a long tradition of courts and bodies justifying decisions that somehow usually accord with the p0litical preferences of those bodies and ‘deciders’.


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